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Vuoso v. Custom Gunite Pools

CASE NO. 1581 CRB-7-92-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 7, 1994

MARIO VUOSO

CLAIMANT-APPELLANT

v.

CUSTOM GUNITE POOLS

EMPLOYER

and

CNA INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Ernest L. Josem, Esq., 111 East Avenue, Norwalk, CT 06851.

The respondents were represented by Cori-Lynn Webber, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main St., Suite 310N, West Hartford, CT 06107.

This Petition for Review from the November 27, 1992 Finding and Dismissal of the Commissioner for the Seventh District was heard April 8, 1994 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the Seventh District Commissioner’s November 27, 1992 Finding and Dismissal of his claim for additional benefits. The claimant was injured by a falling boulder during his employment on August 28, 1990, and executed a voluntary agreement with the respondent employer which was approved on November 23, 1990. The respondents filed a Form 36 on March 8, 1991, which notified the claimant of their intention to stop making total disability payments and to start paying specific benefits for a five percent permanent partial disability to the lumbar spine. No timely objection was made by the claimant, and those benefits were paid. The claimant then sought additional benefits, claiming that he continued to be totally disabled or at least more than five percent partially disabled. The commissioner dismissed that claim, finding that the claimant was able to perform restricted work but had not made an effort to find another job, and that the claimant had refused to undergo recommended surgery. The claimant appeals that decision to this Board. We affirm.

General Statutes §31-307(a) entitles an injured employee to compensation if he is totally incapacitated from working. General Statutes §31-308a gives the commissioner discretion to award additional benefits for partial permanent disability, taking into account, among other things, the availability of work for persons in a similar physical condition to the claimant. Benefits would not be warranted under either of these sections if a claimant was capable of gainful employment but simply chose not to pursue it. See Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 876 CRD-6-89-6 (1991). Whether or not a claimant falls into this category is a factual determination to be made by the trial commissioner. Id. We cannot substitute our conclusions for his, and we review his findings only to determine whether his conclusions were contrary to law or whether his findings were based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Gordon v. St. Vincent’s Medical Center, 8 Conn. Workers’ Comp. Rev. Op. 22, 758 CRD-4-88-8 (1990).

Here, the commissioner found that the claimant was unable to return to the heavy work he had been accustomed to. He was, and had for some time been, physically able to perform more restricted work, however. The claimant had simply not attempted to find such work, or to seek vocational retraining in order to obtain such work. There is sufficient factual support for this conclusion. The commissioner found that the claimant had done a significant amount of traveling since his injury, that the claimant was able to drive an automobile, and that the claimant’s original treating physician concluded that the claimant had only a five percent “permanent partial impairment, not disability, to the lumbar spine”. The fact that the claimant had a limited command of the English language did not excuse his obligation to search for lighter employment. Lageux v. Rene Dry Wall Co., Inc., supra, 181. We hold that there was sufficient evidence to support the factual findings of the commissioner, and that his decision was not based on an incorrect interpretation of the law.

The trial commissioner is affirmed.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

Workers’ Compensation Commission

Page last revised: October 6, 2004

Page URL: http://wcc.state.ct.us/crb/1994/1581crb.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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