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Wrighten v. Burns International Security

CASE NO. 1659 CRB-2-93-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 10, 1995

JAMES WRIGHTEN

CLAIMANT-APPELLANT

CROSS APPELLEE

v.

BURNS INTERNATIONAL SECURITY

EMPLOYER

and

CNA INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Warren Miller, Esq. and Richard D. Haviland, Esq., Rakosky, Smith, Miller & Papp, P.C., 71 Granite St., New London, CT 06320.

The respondents Burns International Security and CNA Insurance Company were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412. However, they were not present at oral argument.

These Petitions for Review from the February 18, 1993 Finding and Award of the Commissioner acting for the Second District were heard April 29, 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 and respondents have both petitioned for review from the February 18, 1993 Finding and Award of the Commissioner for the Second District. The respondents challenge the trial commissioner’s award of § 31-308a benefits to the claimant, while the claimant contends that the commissioner improperly failed to find that the claimant had a 35 percent work-related permanent partial disability of the right leg and that a “light duty” job offered by the respondent employer to the claimant was beyond his physical capability. We reverse the § 31-308a award and affirm the commissioner’s findings regarding the percentage of the claimant’s permanent partial disability.

The claimant, who was employed as a nuclear guard by Burns International Security, suffered compensable injuries on August 10, 1987 and March 15, 1988, for which a voluntary agreement was approved on May 18, 1989 specifying that the claimant had suffered a 5 percent permanent partial disability of the back. The claimant contends that he also suffered a work-related injury when he fell while descending a ladder on October 25, 1988. The commissioner found that a childhood accident had long ago required the claimant to undergo surgery that had left his right leg 1¼” shorter than his left leg. Dr. Edgar, the orthopedist treating the claimant, opined that preexisting back problems related to the claimant’s short leg had caused scoliosis. When the claimant later complained of pain in his right leg, the doctor stated that it was primarily due to the condition caused by the childhood accident, and that the 1987 and 1988 work injuries had resulted only in a 5 percent permanent partial impairment of the lumbar spine. The trial commissioner credited this testimony over that of other doctors regarding the connection between the claimant’s right leg symptoms and the compensable injury, and found that the claimant had failed to prove that his leg injury arose out of and in the course of his employment.

The claimant argues on appeal that it was improper for the commissioner to deny the claimant’s Motion to Correct certain findings regarding the claimant’s alleged 35 percent permanent partial disability of the right leg and its relationship to the claimant’s work duties. We disagree. The commissioner specifically found that the testimony of Dr. Edgar that the claimant’s leg injury was not work-related was more persuasive than the testimony of the claimant’s other doctors. It is the province of the trier of fact, and not this Board, to assess the weight and credibility to be accorded to the testimony presented. Romeo v. H&L Chevrolet, Inc., 10 Conn. Workers’ Comp. Rev. Op. 74, 74, 1149 CRD-7-90-12 (March 31, 1992); Cholewinski v. Brake Systems, Inc., 6 Conn. Workers’ Comp. Rev. Op. 105, 601 CRD-4-87 (Jan. 27, 1989). The testimony of Dr. Edgar provided adequate factual support for the commissioner’s legal conclusion. Thus, we will not question his determination that the claimant’s leg injury did not arise out of and in the course of his employment. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). As the claimant’s suggested factual corrections would not have altered the commissioner’s legal conclusion, he was not bound to grant the claimant’s Motion to Correct. Plitnick v. Knoll Pharmaceuticals, 1699 CRB-8-93-4 (decided Nov. 7, 1994); Beninato v. Specialty Framing, Inc., 11 Conn. Workers’ Comp. Rev. Op. 200, 203, 1306 CRD-8-91-9 (Sept. 24, 1993).

During the period of his treatment with Dr. Edgar, the claimant had complained of increasing pain. On February 10, 1989, Dr. Edgar limited the claimant to light duty employment, restricting him to minimal climbing and lifting. The claimant was forced to seek work elsewhere, as the respondent employer had no light duty policy at that time. In June of 1989, however, the employer offered the claimant an alternative guard duty position. Dr. Edgar testified that he had spoken to the claimant about the position, and both agreed that the claimant would be able to do the job. The claimant did not report for work, however, and was soon terminated.

The commissioner found that the claimant had been offered a job within his capabilities, as a witness had testified that he was capable of doing significant walking. Nonetheless, he awarded the claimant 104 weeks of benefits under § 31-308a C.G.S.1 at a rate of $167 per week. The respondent challenges the legitimacy of that award given the specific finding that the claimant had turned down a job that he was capable of performing. The claimant, meanwhile, contests the commissioner’s finding that the claimant was capable of performing the job. He claims that testimony demonstrated that the job was significantly more demanding than that described in the job offer, and that the commissioner should have found he was unable to perform the job.

As to the claimant’s argument, we need only note that there was evidence to support the conclusion of the trial commissioner. We are thereby precluded from reassessing the commissioner’s conclusions. Fair v. People’s Savings Bank, supra, 207 Conn. 539 (1988). With the finding that the claimant was capable of performing the job offered by the respondent intact, we must then decide whether it was an abuse of discretion for the commissioner to award benefits to the claimant under § 31-308a. Burgos v. United Technologies/Sikorsky Aircraft Division, 1441 CRB-4-92-6 (decided March 15, 1994). We conclude that it was.

The commissioner has discretion to award § 31-308a benefits when a claimant’s earning capacity has been adversely affected by a work-related injury. Burgos v. United Technologies/Sikorsky Aircraft Division, supra. A claimant whose earning capacity is not impaired, however, is not entitled to benefits under that section. The offer of a job to a claimant has been held to be sufficient evidence of the type of work that a claimant was capable of performing. Id. Furthermore, the failure of a claimant to search for work has been held fatal to a claim for benefits under § 31-308a. Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 181, 876 CRD-6-89-6 (Aug. 13, 1991).

In this case, we have a specific finding that the claimant was capable of performing a job that the respondent employer offered to him, which job he effectively turned down by not coming to work. Meanwhile, there is no finding as to how much the claimant would have earned on that job. On the basis of these facts, we are unable to discern any basis for the commissioner’s award of 104 weeks of § 31-308a benefits at $167 per week. There is nothing to indicate what, if any, loss of earning capacity the claimant incurred because of his compensable injuries. All we know is that he declined to perform the job offered to him by his employer. Although an award of benefits under § 31-308a is discretionary, there must be some factual basis to support the exercise of the commissioner’s discretion.

The trial commissioner’s findings regarding the percentage of the claimant’s permanent partial disability are affirmed. We reverse the award of § 31-308a benefits to the claimant.

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

1 At the time of the claimant’s injury, § 31-308a provided: “In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of a body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than the maximum provided by section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined on a similar basis by the commissioner.” BACK TO TEXT

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