CASE NO. 1615 CRB-2-92-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 10, 1995
HARTFORD INSURANCE GROUP
The claimant was represented by Nathan Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., P.O. Drawer 929, Groton, CT 06340.
The respondent Hartford Insurance Group was represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.
At trial, the respondent CIGNA was represented by Diane Duhamel, Esq., Trowbridge, Ide, Mansfield & Shaw, P.C., 207 Main Street, Hartford, CT 06106.
At trial, the respondent Liberty Mutual Insurance was represented by Robert McGann, Esq., McGann, Bartlett & Brown, 281 Hartford Tnpk., Vernon, CT 06066.
The respondent Commercial Union Insurance was represented by Paul Scholder, Esq., P.O. Box 1722, 2 Whitney Avenue, New Haven, CT 06507.
The respondent Kemper Insurance Group was represented by Lois Frankfurter, Esq., 127 Washington Avenue, P.O. Box 35, North Haven, CT 06473.
The respondent American Policyholders was represented by Jean Molloy, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.
Of respondents, no other than the respondent Hartford Insurance Group appeared on appeal.
This Petition for Review from the December 23, 1992 Finding and Award of the Commissioner acting for the Second District was heard January 14, 1994 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, Angelo L. dos Santos, and Nancy A. Brouillet.
JOHN A. ARCUDI, COMMISSIONER. A ruptured oil intake line at his workplace August 3, 1987 caused the claimant to inhale oil fumes. Before then, in 1972 and 1976, he had been exposed to chlorine gas leaks at work. His respiratory difficulties formed the basis for this claim. On May 20, 1988 the Second District approved a Voluntary Agreement between the parties accepting compensability for the August 3, 1987 injuries and setting the compensation rate at $384.70. The December 23, 1992 ruling here being appealed awarded:
(1) Section 31-307 total disability benefits for three weeks from August 4, 1987 to August 27, 1987;
(2) Section 31-308(a) temporary partial disability benefits from August 27, 1987 to August 3, 1989;
(3) Section 31-308(b) specific thirty (30%) percent permanent partial disability of the lungs for 105 weeks beginning August 4, 1989; and
(4) Section 31-308a permanent partial wage loss benefits from August 11, 1991 to January 1, 1993.
The claimant’s appeal seeks to increase the weekly compensation rate from $384.70 to $408.00, the maximum permissible on the 1987 date of injury. The respondents contest (1) the award of Section 31-308(a) temporary partial benefits, (2) the finding that August 3, 1989 was the proper maximum medical improvement date and (3) the award of Section 31-308a wage loss benefits.
To support his contention on the weekly compensation rate, the claimant cites Exhibit 17, a handwritten twenty-six week wage statement. That document shows that the claimant earned an average weekly wage of $670.26. Under the law at the date of injury the weekly compensation rate was 66 2/3% of the average wage. Therefore, counsel contends, the claimant was entitled to the maximum rate then applicable, $408.00. Apparently, the commissioner concluded that the handwritten wage statement was not sufficiently reliable evidence to cause amendment of the 1988 Voluntary Agreement which had established a $384.70 compensation rate. As an appellate tribunal, we cannot substitute our findings for those of the trier of fact, unless the commissioner’s finding includes facts found without evidence or fails to include undisputed material facts, McCurdy v. State, 227 Conn. 261, 267 (1993). We therefore deny the claimant’s appeal.
In discussing the respondents’ appeal, we first consider the claim that the commissioner erred in finding August 3, 1989 as the maximum medical improvement date. They argue that Dr. Martin Cherniack first rated the claimant for permanent partial disability of the lungs in May 1988 and that date should have been the date of maximum medical improvement. Yet Dr. Cherniack, in his October 1988 examination, found that the claimant’s lung condition had deteriorated further.
Dr. Thomas Godar, the respondents’ pulmonary expert, examined the claimant on October 30, 1987 and again on July 28, 1989. The finding, paragraphs 28, 29 and 30, reports Dr. Godar’s conclusions; the respondents sought no corrections of those paragraphs. The commissioner therefore found Dr. Godar had determined after the July 28, 1989 examination that the claimant had a permanent partial impairment and that he then had reached maximum medical improvement. The evidence relating to Dr. Godar’s examination coupled with Dr. Cherniack’s view that the claimant’s condition had deteriorated after May 1988 are a sufficient evidentiary basis for the commissioner’s finding maximum medical improvement on August 3, 1989, paragraph 49. We cannot change the date thus found, Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
The respondents’ objection to the commissioner’s Section 31-308(a) and Section 31-308a awards are articulated in their Reasons of Appeal filed January 4, 1993 and their Amended Reasons of Appeal filed April 6, 1993, three months later. The claimant objected to the late filing of the Amended Reasons of Appeal, but we will allow them. In truth, the respondents in their January 4, 1993 filing had already objected to both the 31-308(a) and 31-308a awards. The April filing simply added another argument to their objections. They could just as easily have advanced that new argument in their brief.
That new argument is a constitutional administrative due process one, i.e. the respondents were not informed in the notices of hearings that Section 31-308(a) and Section 31-308a benefits were to be considered. Throughout the Second District’s six hearings of August 14, 1990, October 16, 1990, January 10, 1991, August 20, 1991, October 28, 1991 and January 17, 1992, the claimant sought Section 31-308(a) temporary partial benefits from September 19, 1987 to May 17, 1988, Section 31-308 specific benefits for 105 weeks after that, and Section 31-307 temporary total disability benefits beginning after that 105 week period. The respondents did not contest the occurrence of a compensable event on August 3, 1987.
To counter the claimant’s assertions, the respondents offered evidence through Dr. Godar that the claimant had suffered permanent partial disability of the lungs with limited overall work capacity. They also offered videotape testimony showing the claimant mowing his lawn and helping to push a car. It certainly could have been no surprise that the claimant might be found to have a limited work capacity at best when their own medical witness so testified. True, that expert reduced his evaluation of permanent partial lung disability from thirty to twenty percent after being shown the videotape, but he still found at least twenty percent permanent partial lung disability.
As noted above, the essence of the due process argument is surprise; a party should not be ambushed by a surprise new issue of which it had no notice. But does not the claim of total disability in 1990 necessarily encompass a lesser claim of partial disability? Is that not why in another area of the law, an accusation of a greater offense includes the possibility of a verdict for a lesser one? Moreover, the respondents could hardly claim surprise about the Section 31-308(a) temporary partial benefits awarded by the commissioner for periods in 1987 and 1988 as the claimant’s counsel clearly announced he was seeking such benefits at the outset of the August 14, 1990 formal hearing, the very first of the six formal hearings.
Finally, on the issue of inadequate notice, these evidentiary proceedings were not completed in one day or two consecutive days, October 14 and October 15, 1990. Instead, they stretched over six hearing dates in three calendar years. During those hearings there was testimony from the claimant that he sought limited work for more than a year after the accident. There was further testimony from medical experts that the claimant had a limited work capacity. Given such evidence, some of it offered by the respondents, partial wage loss benefits were necessarily comprehended within the matters being litigated before the commissioner. None of the parties could reasonably have doubted its presence as an issue in the proceedings. Osterlund v. State, 129 Conn. 591, 596 (1943), cited by the respondents, does not apply. In that case the hearing was called to decide motions concerning the weekly compensation rate and a change of physicians. The commissioner went beyond the subject of those motions and issued a ruling concerning the types of indemnity benefits to be paid. In the present matter, the issue of what types of indemnity payments, if any, were payable was part and parcel of all six evidentiary hearings held.
Apart from the insufficiency of notice argument, the respondents also contend the Section 31-308(a) and Section 31-308a partial wage loss awards were improper, because the claimant had retired from the work force in March 1988. Actually, when the doctors advised him in 1987 that his work capacity was limited, the claimant sought work from the respondent employer Lydall, Inc. suitable to that limited capacity. His request was refused. The claimant then sought other work in the area until the late autumn of 1988 when he went on Social Security Retirement at the age of sixty-two years and eight months. He retired from Lydall, Inc. in March 1988 when they had no work for him, but he had hoped to work at Lydall until age sixty-five. He had already worked there twenty-six years.
Section 31-308(a) provides that if a worker’s injury disables him from performing his previous work, but he is able to do a lighter job, and the employer has no lighter work for him and no other work is available in the area, then that worker is entitled to compensation. The claimant testified that he retired from Lydall in March 1988 when there was no work for him there, and eight months later in November, when he could find no other suitable work available, he went on Social Security. That evidence was a sufficient evidentiary basis for the commissioner’s award of Section 31-308(a) benefits.
Section 31-308a does not include the Section 31-308(a) provision cited above. Rather, this statute focuses on the partial loss of earning capacity and partial wage loss a worker suffers when he has had a permanent partial disability of a body part under Section 31-308(b). Section 31-308a benefits, however, are dependent on the availability of work or lack of such available work “for persons with such physical condition and at the employee’s age.” As we ruled in Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Compensation Rev. Op. 43, 45, 1111 CRD-4-90-9 (Jan. 28, 1992), the statute does not require an unfruitful work search to demonstrate unavailability of work. Other evidentiary means may be the basis for such a conclusion. Here, the commissioner found that the claimant attempted to return to work at Lydall without success and that he also attempted to find work elsewhere without success. These findings relied on the evidence that the claimant sought work until he filed for Social Security. This, again, was a sufficient evidentiary basis to conclude no work was available for a person of such an age and such a limited work capacity. The law does not require a fruitless work search when work seeking efforts already performed have demonstrated the unavailability of work.
In the respondents’ brief there is a reference to “undisputed evidence of full retirement effective March 1991.” That is the date when the claimant reached sixty-five, and the evidence showed that the claimant had intended to work at Lydall until reaching that age. However, retirement from Lydall would not, absent the work injury, necessarily have meant full retirement from the work force. Even receipt of Social Security retirement benefits does not necessarily mean full retirement. The Social Security Act itself contemplates a state of partial retirement and permits such retirees to receive work earnings up to certain limits. This concept of partial retirement in the federal law is similar to partial wage loss in the workers’ compensation law, and the Sections 31-308(a) and 31-308a benefits awarded in this matter are such partial wage loss benefits.
For the reasons given in this opinion all appeals, both those of the claimant and the respondents, are dismissed, and the decision of the commissioner is affirmed.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur with this decision.