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Wright v. Institute of Professional Practice

CASE NO. 1790 CRB-3-93-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 18, 1995

DONNA WRIGHT

CLAIMANT-APPELLANT

v.

INSTITUTE OF PROFESSIONAL PRACTICE

EMPLOYER

and

WAUSAU INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Ikechukwu Umeugo, Esq., Turner, Brown, McIntosh & Umeugo, P.C., 900 Chapel St., Suite 630, New Haven, CT 06508-1836.

The respondents were represented by David D. Chapman, Esq., Law Offices of Larry H. Lewis, 639 Research Parkway, Meriden, CT 06450.

This Petition for Review from the August 5, 1993 Finding and Award of the Commissioner acting for the Third District was heard June 24, 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 August 5, 1993 Finding and Award of the Commissioner for the Third District. She argues on appeal that the commissioner improperly limited her recovery of benefits under § 31-308(a) C.G.S. to 28 weeks of benefits, that he improperly failed to make a specific indemnity award, and that he improperly failed to impose sanctions against the employer under § 31-300 C.G.S. We affirm the trial commissioner’s decision.1

The claimant sustained a cervical spine injury on June 14, 1991, in a motor vehicle accident arising out of and in the course of her employment with the respondent employer. The insurer accepted liability for the case without issuing a voluntary agreement. The claimant was examined by two physicians, Dr. Timpson and Dr. Frechette. Dr. Timpson had advised the claimant to stay out of work until September 25, 1991 because of side effects from the medication he had prescribed for her. Dr. Frechette released the claimant for light duty work on August 22, 1991. He also rated the claimant as having zero to five percent permanent partial disability of the cervical spine after reaching maximum medical improvement on June 22, 1992, with no further work restrictions.

The respondent employer could not provide the claimant with light duty work during her period of partial disability. She then registered with the State of Connecticut Job Service and conducted her own light duty job search, which consisted primarily of mailing out resumes in response to help wanted ads. The commissioner found that some of the claimant’s job search efforts were duplicated. He concluded that she had sustained her burden that she was ready, willing and able to perform light duty work for 28 of the 43 weeks for which she sought temporary partial incapacity benefits. He also concluded that she had no permanent partial disability of the cervical spine. The claimant has appealed from that decision.

The claimant first contends that the facts surrounding her job search entitle her to more than 28 weeks of temporary partial disability benefits under § 31-308(a). That section entitles an employee to full weekly compensation if “(1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available.” Whether a claimant has satisfied these criteria is a factual determination to be made by the trial commissioner. Gordon v. St. Vincent’s Medical Center, 8 Conn. Workers’ Comp. Rev. Op. 22, 23, 758 CRD-4-88-8 (Jan. 18, 1990); see also Vuoso v. Custom Gunite Pools, 1581 CRB-7-92-12 (decided Dec. 7, 1994). If there is evidence to support his decision, we can not substitute our own factual conclusion for his. Id.

Here, the respondent employer disputed the claimant’s job search efforts and offered evidence that some of her job search efforts were duplicated in order to inflate her entitlement to benefits. The commissioner agreed that some of the claimant’s job efforts were duplicated. Because the claimant did not file a Motion to Correct, we are limited to the commissioner’s findings. Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994). Thus, we must assume it is true that the claimant duplicated some of her job efforts, and that she did not make personal contact with prospective employers.

In Gordon, supra, we held that a commissioner’s findings that the claimant did most of her job searching over the telephone, that she contacted several employers numerous times, and that she limited her searches to light duty nursing positions supported the commissioner’s conclusion that the claimant was not entitled to § 31-308(a) light duty benefits. The factual background and findings in the instant case are quite similar, and likewise support the commissioner’s conclusion regarding the claimant’s limited entitlement to § 31-308(a) benefits. We thus affirm the commissioner’s decision.

The claimant’s failure to file a Motion to Correct also leaves intact the commissioner’s finding that the claimant did not have any permanent partial disability to her cervical spine. Consequently, the claimant can not argue now that the commissioner improperly assessed the medical evidence before him. We note, however, that the commissioner was not required to credit Dr. Frechette’s testimony. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). Moreover, his testimony actually supported a finding of no permanent partial disability. The commissioner’s decision not to award specific indemnity benefits must be affirmed as well.

Finally, the claimant argues that sanctions should have been imposed against the respondents for undue delay of payment and unreasonable contest under § 31-300 C.G.S. The statute requires that the commissioner make a finding that the employer or insurer has unreasonably contested liability or unreasonably delayed payment before making a discretionary award of attorney’s fees and interest. See Wheeler v. Bender Plumbing Supply of Waterbury, Inc., 10 Conn. Workers’ Comp. Rev. Op. 140, 1186 CRD-5-91-3 (June 5, 1992). No findings were made regarding that issue, and no Motion to Correct was filed; consequently, there is nothing for this Board to review.

The trial commissioner’s decision is affirmed.

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

1 The respondents filed a cross-appeal which was withdrawn on September 10, 1993. BACK TO TEXT

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