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Croft v. Connecticut Transit

CASE NO. 1635 CRB-1-93-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 2, 1996

SANDRA CROFT

CLAIMANT-APPELLANT

v.

CONNECTICUT TRANSIT

EMPLOYER

SELF-INSURED

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Leon M. Rosenblatt, Esq., 10 North Main St., West Hartford, CT 06107-1988.

The respondent employer was represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

The Second Injury Fund did not file a brief or appear at oral argument. Notice sent to Loida John-Nicholson, Esq., Assistant Attorney General, 55 Elm Street, 5th Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 25, 1993 Finding, Award and Dismissal of the Commissioner acting for the First District was heard September 22, 1995 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Roberta Smith Tracy and Amado J. Vargas.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The claimant has petitioned for review from the January 25, 1993 Finding, Award and Dismissal of the Commissioner acting for the First District. She argues on appeal that the trial commissioner erroneously failed to find her back injury compensable, and that he erroneously granted a Motion to Correct by the respondent that reversed his finding regarding the compensability of the claimant’s neck injury. We affirm the trial commissioner in part, and reverse in part.

The claimant alleges that she suffered a back injury on June 29, 1989, arising out of and in the course of her employment. This injury was not accepted by the respondents. She also claims that a November 17, 1989 accident had resulted in a twenty percent permanent partial impairment of her neck, which was a recurrence of a prior injury, and for which she was paid. The respondents conceded the existence of the neck injury, but contended that the claimant should not collect further benefits for temporary partial disability, as she did not pursue employment that was available to her within her restrictions.

The trial commissioner recited in his findings the claimant’s contention that her back injury occurred when she was given a bus with a nonadjustable seat, causing spasms and cramping in her hip and posterior. The claimant had surgery two months later. Her neurosurgeon, Dr. Gahm, initially believed that her problem was a ruptured disc. Dr. Gahm later amended his report to state the cause of her problem was a type of arthritis, facet hypertrophy, unrelated to her alleged compensable injury. He did state that the work incident of June 29, 1989 aggravated her condition, however. The commissioner ultimately found that the claimant had failed to sustain her burden of proof as to the cause of her back injury.

Despite the claimant’s argument that no evidence was introduced to contradict Dr. Gahm’s opinion, this board is not in a position to second-guess the trial commissioner on that issue. The burden of proving the causal relationship between the claimant’s back injury and her employment was on the claimant. Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 41 (1996); see also Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). She attempted to do this by introducing the testimony of her neurosurgeon. As the finder of fact, the trial commissioner was the person charged with determining the credibility of Dr. Gahm’s testimony and the weight to give his medical reports. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995). He chose not to credit the doctor’s opinion that the problem with the non-adjustable seat aggravated the claimant’s pre-existing back condition. On review, this board cannot say that it was error for the commissioner not to believe that opinion, or any witness, for that matter. We must affirm the commissioner’s decision to dismiss the back injury claim.

With respect to the claimant’s neck injury, the commissioner found that on December 10, 1990, the claimant returned to work after a brief period of total incapacity, and that she was under a work restriction forbidding her from driving a bus without power steering. The respondent released her from work on that same date, contending that the job she was about to start did not meet the absolute power steering restriction. The claimant’s restriction was changed on May 25, 1991 to allow for one hour per day of manual steering, at which time the claimant returned to work.

The commissioner noted that the claimant bid for fifteen bus driving jobs in December of 1990, but did not bid for any “E Line” runs, where the highest percentage of power steering buses were used. He also noted that there was no evidence in the record that the claimant searched for other jobs once the employer released her, although “under the circumstances it did not appear that job searches were necessary.” (The claimant was offered and worked on temporary jobs created by the employer until the bids for new regular jobs were entered.) The commissioner concluded that the claimant was disabled from her regular job from December 10, 1990 to May 25, 1991 because of the aggravation of her neck injury, and that she was entitled to temporary partial disability benefits as a result. He subsequently granted a Motion to Correct filed by the respondent, however, adding findings that the claimant could have performed a variety of sedentary jobs within the area, and that her failure to seek such employment did not satisfy the criteria of § 31-308(a) as discussed in Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 1111 CRD-4-90-9 (Jan. 28, 1992). Thus, the temporary partial disability award was negated.

Section 31-308(a) allows wage differential benefits to be paid in cases of partial incapacity. Full compensation may be paid to injured employees who are unable to perform their usual work, but are ready, willing and able to perform other work in the same locality, if such work is unavailable. Although our statutes do not require a claimant to perform a work search, it has been accepted as one evidentiary basis to demonstrate willingness to work and the availability of suitable light duty employment. Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996); Goncalves, supra, 45. Other evidentiary means may also be used to fulfill that requirement.

In this case, it is difficult to tell from the factual findings if the requirements of § 31-308(a) were satisfied by the claimant. The original finding that job searches did not appear to be necessary is inconsistent with the corrected additional finding that the claimant could have performed sedentary jobs within her locality. There are findings indicating that the claimant failed to bid for bus driving jobs that might have satisfied her power steering work restriction, but at the same time there is also a finding that the claimant was offered and worked on temporary jobs created by the employer.

Moreover, it is impossible to tell from the respondent’s Motion to Correct why the commissioner changed his mind regarding temporary partial disability. The mere citation of Goncalves by the respondent does not explain the reasoning behind those corrections. In Goncalves, we ruled that a remand was appropriate where the facts had not been sufficiently found to render a just judgment. Id., 45-46, citing Cormican v. McMahon, 102 Conn. 234, 238 (1925). Similarly, in light of the inconsistencies in the findings here, we hold that the issue of temporary partial disability as a result of the cervical injury must be remanded to a trial commissioner for further findings.

The trial commissioner is affirmed in part, and reversed in part. The case is remanded to the First District for further proceedings consistent with this opinion.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

Workers’ Compensation Commission

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