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McMahon v. Metropolitan District Commission

CASE NO. 2001 CRB-1-94-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 22, 1995

DAVID MCMAHON

CLAIMANT-APPELLANT

v.

METROPOLITAN DISTRICT COMMISSION

EMPLOYER

and

CIGNA INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Timothy Mills, Esq., 21 Oak Street, Hartford, CT 06106.

The respondents were represented by James Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the March 14, 1994 Finding and Award of the Commissioner acting for the First District was heard January 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 14, 1994 Finding and Award of the Commissioner for the First District. In that finding and award, the trial commissioner found that the claimant, while working in the employer’s waste treatment facility, sustained a compensable respiratory injury which did not cause any permanent partial disability. The claimant contends on appeal that the commissioner improperly failed to award benefits under § 31-308(a) C.G.S. We affirm the trial commissioner’s decision.

The commissioner found the following facts. On April 16, 1989 and April 24, 1990, the claimant sustained injuries to his lungs caused by the inhalation of chemicals, which caused the claimant’s lungs to become sensitized, but which did not cause any permanent impairment. The employer accepted the lung injuries as compensable, and paid workers’ compensation benefits until December 2, 1990. Through its disability transfer program, the employer transferred the claimant at his same rate of pay to the Poquonock plant, a smaller waste treatment facility, on August 23, 1990. The claimant’s duties at the Poquonock plant were within his medical restrictions, and the claimant’s respiratory condition improved while at the Poquonock plant. On October 2, 1990, Dr. Godar, a pulmonary specialist, recommended that the claimant remain at Poquonock for an additional two months to allow for additional improvement. The claimant on his own initiative posted for, and effective December 2, 1990 was hired for, a position in meter maintenance which paid substantially less than he had been earning. The commissioner did not award benefits pursuant to § 31-308(a) because he concluded that the claimant voluntarily left a suitable position for a lower paying position.

In support of his appeal, the claimant argues that the commissioner improperly failed to award him § 31-308(a) benefits, and that the commissioner improperly failed to grant his motion to correct the findings. Specifically, the claimant argues that the undisputed testimony and reports by Dr. Godar indicate that the claimant continued to have respiratory symptoms at the Poquonock plant, and that the complete removal of the claimant from the Poquonock plant was required in order for his symptoms to abate. In further support of his appeal, the claimant contends that the commissioner improperly admitted and relied upon evidence regarding the disability transfer provisions in the claimant’s union contract. We find no error.

The applicable version of § 31-308(a) provided, in relevant part:

If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent 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 amount he is able to earn after the injury....

This section makes it clear that if a claimant’s injury results in the claimant being restricted from performing his or her customary work, but still able to perform some employment, the claimant may be entitled to benefits. Hansen v. Gordon, 221 Conn. 29, 39 (1992). Whether the claimant is medically unable to perform a certain position is a factual question. See Sharp v. James Wright Precision, 12 Conn. Workers’ Comp. Rev. Op. 293, 1596 CRB-2-92-12 (June 8, 1994). As an appellate tribunal, this board can only disturb such factual conclusions when they are found without evidence, contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In the instant case, there is sufficient evidence in the record to support the commissioner’s determination that the claimant unilaterally left a position at the Poquonock plant which was within his medical restrictions, and which maintained the claimant’s wage rate. We thus affirm the denial of § 31-308(a) benefits.

We find no merit in the claimant’s contention that the commissioner improperly admitted and relied upon evidence of the disability transfer provisions in the claimant’s union contract. Workers’ compensation commissioners are not bound by common law or statutory rules of evidence, “but shall make inquiry, through oral testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” General Statutes § 31-298 C.G.S. This board has stated that the requirement to receive § 31-308(a) benefits “is not the employee’s ability or disability because of his injury to do his old job but whether he could do another job and earn as much money.” Sharp, supra, quoting Clark v. Henry & Wright Mfg. Co., 136 Conn. 514, 517 (1950). Thus, the employer’s disability transfer program was relevant because it provided a means for the claimant to transfer to another position for medical reasons without any reduction in wages.

Finally, the claimant seeks interest, attorneys fees, and costs for undue delay of payment and unreasonable contest under § 31-300 C.G.S. This 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 regarding this issue; consequently, there is nothing for this board to review.

As the commissioner applied § 31-308(a) properly, and there is evidence to support his findings, we affirm his denial of benefits under that section.

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

Workers’ Compensation Commission

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