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Rose v. Hartford Hospital

CASE NO. 1980 CRB-1-94-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 30, 1995

RICHARD ROSE

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

HARTFORD HOSPITAL

EMPLOYER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

CROSS-APPELLEE

APPEARANCES:

The claimant was represented by James M. Quinn, Esq., Furniss & Quinn, P. C., 248 Hudson St., Hartford, CT 06106-1723.

The respondent employer was neither represented at oral argument nor at the formal hearing below.

The Second Injury Fund was represented by Loida John-Nicholson, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the March 4, 1994 Finding and Award and the March 21, 1994 denial of the claimant’s Motion to Correct by the Commissioner acting for the First District were heard January 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant and the Second Injury Fund have both petitioned for review from the decision of the Commissioner for the First District in this case. The Fund, appealing directly from the March 4, 1994 Finding and Award, argues that the commissioner improperly awarded the claimant temporary total disability benefits despite evidence that the claimant had a work capacity. The claimant, appealing from the March 21, 1994 denial of his Motion to Correct, argues that the commissioner erroneously failed to correct the award to reflect his entitlement to total disability benefits since October 1989. We affirm the trial commissioner’s decision.

The commissioner found that the claimant, who was born in 1935, is totally deaf and has been so since his birth. He attended school until he was 16 years old, at which time he was at the fourth grade level. He is proficient in sign language, but reads English only slightly and speaks unintelligibly. The claimant was instructed in carpentry at a young age, and pursued that line of work through April 24, 1987, when the claimant suffered a compensable back injury. He subsequently underwent spinal surgery, and returned to work from August 1988 to October 2, 1989, undergoing periods of total and partial disability during that time. The claimant has not since performed carpentry work.

The commissioner found that the claimant reached maximum medical improvement on January 1, 1992. The Second Injury Fund had assumed liability for the claim effective March 19, 1990. A voluntary agreement established a 15 percent permanent partial disability of the claimant’s back, with specific payments continuing through June 29, 1993. A medical report by Dr. Druckemiller attached to the voluntary agreement opined that the claimant was capable of light work with bending restrictions and a 30-pound lifting limit, which work capability was qualified by the claimant’s deafness and limited education. The claimant also produced the testimony of Hank Lerner, a vocational specialist, who indicated that the claimant’s age, deafness and educational background severely curtailed his employability. Combined with his lack of transferable skills and his injury-related restrictions, this rendered the claimant’s labor unmarketable in Lerner’s opinion.

The commissioner concluded that the claimant had been totally disabled since June 30, 1993, entitling him to temporary total disability benefits. He ruled that the period prior to that date was controlled by the voluntary agreement. The Fund appealed the decision that the claimant was entitled to benefits. The claimant filed a Motion to Correct seeking to eliminate the paragraph of the Finding and Award specifying that the voluntary agreement was controlling prior to June 30, 1993. When that was denied, the claimant appealed as well.

We first address the Fund’s appeal. The Fund argues that Dr. Druckemiller stated that the claimant had a light duty work capacity, and that Hank Lerner concurred in this opinion. The Fund notes that Lerner identified 333 jobs in the transferability system he used in evaluating the claimant, 40-45 of which would fit the claimant’s residual work capacity. Lerner also opined that the claimant possessed a range of transferable skills. The Fund argues that the claimant’s failure to seek work in light of this residual work capacity made him ineligible for total disability benefits, and the commissioner’s finding that the claimant’s employability was “severely curtailed” was legally insufficient to support a temporary total disability award. Osterlund v. State, 135 Conn. 498 (1949).

Whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 1680 CRB-2-93-3 (decided April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). Similarly, the question of whether a claimant has a light work capability and has adequately pursued that capability is a factual decision for the commissioner. Shimko v. Ferro Corporation, 1744 CRB-7-93-5 (decided April 18, 1995). Upon review of the factual issues underlying this determination, we will only disturb the commissioner’s decision if his conclusions were contrary to law, or based on impermissible or unreasonable factual inferences. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

Here, although the claimant may have had a theoretical light duty capability, the commissioner found that his age, deafness, inability to speak English, and limited education severely curtailed his employability. The commissioner also found that the claimant had no readily transferable skills, and that these factors rendered his labor unmarketable when combined with the physical restrictions resulting from his injury. This conclusion is supported by the testimony of Hank Lerner, who stated that the claimant’s limited capacity for 40-45 selected light and sedentary occupations would not translate into actual employability once his age, deafness, etc., were factored in. (Transcript, May 25, 1993, p. 78-79.) On cross-examination, Lerner also said that many of those 40-45 occupations were for positions in an industry that no longer exists in the Connecticut economy. (Id., p. 84.) As the record adequately supports the factual findings of the commissioner, we need not disturb them.

In Osterlund, supra, our Supreme Court stated that “[a] finding that an employee is able to work at some gainful occupation within his reasonable capacities is not in all cases conclusive that he is not totally incapacitated. If, though he can do such work, his physical condition due to his injury is such that he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.” Osterlund, supra, 506-07. Normally, this Commission prefers to use the work search procedure as an evidentiary basis to demonstrate a willingness to work and/or the unavailability of work. Boughton v. Kimberly Clark Corp., 1871 CRB-7-93-10 (decided April 28, 1995); Wrighten v. Burns International Security, 1659 CRB-2-93-2 (decided March 10, 1995). However, a work search is not specifically required by the statute, as it is conceivable that a commissioner could find that a claimant was willing to work, but that a job search would be utterly futile given the claimant’s limited abilities. See Bowman v. Jack’s Auto Sales, 1721 CRB-2-93-5 (decided March 22, 1995).

We think that it was within the discretion of the commissioner to conclude that the facts of this case warranted such a conclusion. There was testimony supporting the conclusion that the claimant was practically unemployable as a result of his compensable injury combined with his other limitations. Therefore, we conclude that the commissioner properly awarded the claimant temporary total disability benefits.

In his cross-appeal, the claimant argues that the commissioner erred in not setting aside the voluntary agreement as to the claimant’s 15 percent permanent partial disability in order to allow a finding of total disability retroactive to October 2, 1989. He argues that the voluntary agreement was executed under duress, because the Fund refused to advance permanent partial disability benefits pending trial without a voluntary agreement.

The commissioner found, however, that the voluntary agreement had the force and effect of a judgment in this case, and that “no evidence was adduced to justify opening them, and they control the period through June 29, 1993.” We infer from that finding that the claimant pressed a similar argument at the formal hearing to no avail, as the commissioner refused to reopen the voluntary agreement. Moreover, we note that the commissioner’s finding of total disability after June 29, 1993 does not, as a matter of law, require a finding of total disability before that date. The claimant has not provided this Board with sufficient grounds to question the commissioner’s decision on that issue, and we therefore must defer to his finding.

The trial commissioner is affirmed on both the claimant’s and the Fund’s petitions for review.

Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.

Workers’ Compensation Commission

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