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Clay v. Quality Insulation

CASE NO. 1922 CRB-2-93-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 12, 1995

LAMAR CLAY

CLAIMANT-APPELLEE

v.

QUALITY INSULATION

EMPLOYER

and

CNA INSURANCE COMPANIES

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Nathan J. Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P. C., 475 Bridge St., P. O. Drawer 929, Groton, CT 06340.

The respondents were represented by Cori-Lynn S. Webber, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main St., Suite 310N, West Hartford, CT 06107-2445.

This Petition for Review from the December 13, 1993 Finding and Award of the Commissioner acting for the Second District was heard December 2, 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 respondents have petitioned for review from the December 13, 1993 Finding and Award of the Commissioner for the Second District. They argue on appeal that the commissioner improperly awarded the claimant benefits under § 31-308a C.G.S. because the claimant voluntarily left the work force to attend college. We affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to his lumbar spine on October 10, 1991, for which he was paid a five percent permanent partial impairment award pursuant to a voluntary agreement approved on November 1, 1993. The claimant’s permanency award expired on July 20, 1993, after which he began receiving § 31-308a discretionary benefits. At the time of his injury, the claimant was employed as an installer by the respondent, and was concurrently employed as a maintenance worker by the Fairlawn Convalescent Home and as a counselor by the TVCCA. Because of his back injury, the claimant was advised to refrain from further work as an installer by his treating physician and by an independent medical examiner.

In October 1992, the claimant began working light duty at the Stonington Institute as a health aide. He also continued his employment with the TVCCA. The claimant’s application for vocational rehabilitation through the Division of Workers’ Rehabilitation (DWR) was granted soon afterward, specifically for an Associates Degree program in Drug and Alcohol Counseling at Mohegan Community College. The claimant has received no financial benefits from DWR since he began that program in September 1993. He did reduce his work hours once he began classes because of his need to study and go to school, which the respondents contend prevents him from being entitled to § 31-308a benefits. The commissioner found, however, that the claimant was entitled to § 31-308a benefits at the reduced rate of $175.00 per week while attending school. The respondents have appealed from that decision.

The respondents argue that § 31-308a does not give a commissioner authority to award discretionary benefits to a claimant who has voluntarily left the work force to return to school. That section provides a commissioner with discretion to award additional compensation benefits based on the difference between the wages currently earned by an employee in the same position that the injured employee was in 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 on 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 . . . .” The respondents argue that the statute on its face does not apply to a claimant receiving schooling, as that section is meant for claimants who are working to their full capacity, yet still make less than they would have had they not been injured.

When a claimant’s earning capacity has been adversely affected by a work-related injury, a commissioner has discretion to award benefits to the claimant under § 31-308a. Wrighten v. Burns International Security, 1659 CRB-2-93-2 (decided March 10, 1995). This discretion is not completely unfettered, however. O’Connor v. United Parcel Service, 1741 CRB-4-93-5 (decided March 30, 1995); Burgos v. United Technologies/Sikorsky Aircraft Division, 12 Conn. Workers’ Comp. Rev. Op. 204, 207, 1441 CRB-4-92-6 (March 15, 1994). “Generally, the requirements of proof in a claim for Sec. 31-308a C.G.S. discretionary benefits will contain some of the elements of a Sec. 31-308 (a) C.G.S. claim along with the pure factual determinations allocated to the trial commissioner and considered discretionary regarding the loss of claimant’s earning capacity vis-à-vis claimant’s age, physical incapacities, work restrictions, nature of injury, etc.” Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 180, 876 CRD-6-89-6 (Aug. 13, 1991).

In Fortin v. State of Connecticut, 2 Conn. Workers’ Comp. Rev. Op. 116, 138 CRD-6-82 (Jan. 14, 1985), this Board determined that a partially incapacitated nurse who had been disabled from her usual and customary work and who had not found other employment was entitled to § 31-308(a) temporary partial disability benefits during the period of her voluntary enrollment in a full-time college course. Id., 117. “Although claimant took herself out of the job market by attending college to enhance her word skills, her diminished earning capacity continued and she was entitled to continuing benefits as found by the Commissioner.” Id.

Similarly, we held in Mazzone v. Norwalk, 5 Conn. Workers’ Comp. Rev. Op. 111, 112-13, 482 CRD-7-86 (June 21, 1988), that a claimant who voluntarily removed himself from the labor market by attending a DWR college program could be awarded temporary total disability benefits. “Here, the claimant’s removal from the labor market was not voluntary. It was forced due to the severity of the injury and its sequelae. His school attendance . . . constituted an attempt to re-enter that labor market with employable skills. The commissioner therefore had sufficient evidentiary basis to find Claimant was incapable of working ‘at his customary calling or at any other occupation which he might reasonably follow.’” Id., 113 (citations omitted).

The key difference in this case is that our claimant had actually obtained other employment, and the commissioner found that he voluntarily reduced his hours in order to attend school and study. We have recently held that a claimant who turned down a job at an unspecified salary that the commissioner found he was capable of performing was not entitled to § 31-308a benefits awarded to him by the trial commissioner. Wrighten, supra. However, the claimant in that case had not refused employment in order to attend a DWR-approved program (or to pursue any other productive avenue, based on the findings). It would be inconsistent with the humanitarian spirit and remedial purpose of the Workers’ Compensation Act to penalize a claimant who, because of his injury and resultant incapability of performing his previous line of work, chose to pursue another career that required some education before employment could be obtained in that area. Mazzone, supra; see also Dubois v. General Dynamics Corporation, 222 Conn. 62, 67 (1992). A claimant should not be required to indefinitely retain unsuitable employment in order to collect wage differential benefits where the DWR has approved a vocational rehabilitation program that would allow the claimant to pursue a more desirable line of work.

The fact that § 31-283a C.G.S.1 has “created an avenue for injured employees to receive benefits while receiving higher education” does not preclude a commissioner from awarding benefits to a claimant whose earning capacity has been compromised by a compensable injury. First, our Supreme Court has stated that a subsistence allowance disbursed by the DWR is not a workers’ compensation payment within the meaning of the Workers’ Compensation Act. Crocetto v. Lynn Development Corporation, 223 Conn. 376, 381 (1992). We thus will not hold that the potential availability of funds under § 31-283a takes the place of workers’ compensation under Connecticut law.

Second, the general language of § 31-283a hardly demonstrates that the legislature of this state has considered and rejected the availability of workers’ compensation benefits for a claimant who is enrolled in a DWR-approved program. Indeed, it is more consistent with the purpose of the DWR that a commissioner be given the discretion to award benefits to a claimant who is attempting to increase his or her earning potential under the statute. We also note that, in the long run, it benefits both claimants and employers for injured claimants to maximize their future earning potentials by retraining themselves for other occupations. Therefore, we hold that § 31-308a gives a commissioner discretion to award discretionary wage differential benefits to a claimant who is participating in a DWR-approved rehabilitation program.

The respondents also argue that it is impossible to know what the claimant’s wage differential would be because he has voluntarily decreased his work hours. We disagree. The commissioner was aware of the claimant’s light duty employment at TVCCA and at the Stonington Institute. He possessed sufficient information on which to base a discretionary award of wage differential benefits under § 31-308a. The respondents’ contention that the claimant should be assumed capable of at least a 40-hour work week simply because he was capable of going to school for 35 hours and working at the Stonington Institute for eight hours per week is incorrect, especially in light of the analysis and the policy discussed above. The commissioner had evidence from which to conclude that the claimant’s compensable injury necessitated his retirement from his job as an installer, and had evidence on which to base his decision that the claimant was entitled to $175.00 per week in § 31-308a benefits while attending Mohegan Community College. We will not disturb his conclusions.

The trial commissioner’s decision is affirmed.

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

1 Section 31-283a(a) C.G.S. establishes “within the workers’ compensation commission a division of workers’ rehabilitation which shall provide rehabilitation programs for employees suffering compensable injuries within the provisions of this chapter, which injuries disabled them from performing their customary or most recent work. . . .” BACK TO TEXT

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