State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Caprio v. Upjohn Company

CASE NO. 2123 CRB-3-94-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 12, 1996

VICTOR CAPRIO

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

UPJOHN COMPANY

EMPLOYER

and

CIGNA INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

CROSS-APPELLEES

APPEARANCES:

The claimant was represented by Richard L. Jacobs, Esq., Jacobs, Jacobs & Shannon, 265 Orange St., New Haven CT 06510, who did not appear at oral argument.

The respondents were represented by David W. Schoolcraft, Esq., Trowbridge, Schoolcraft & Basine, P.C. 207 Main St., Hartford, CT 06106-5314.

This Petition for Review from the August 4, 1994 Finding and Award of the Commissioner acting for the Third District was heard August 25, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the August 4, 1994 Finding and Award of the Commissioner for the Third District. The issue on appeal is the commissioner’s award of temporary partial benefits under § 31-308a at the rate of $462.86 per week from April 26, 1993 through October 25, 1993. The respondents contend that the commissioner improperly calculated the claimant’s weekly benefit rate under § 31-308a C.G.S. In addition, the respondents contend that the commissioner failed to take into consideration the $300.00 per week paid by the employer to the claimant under its disability plan.

The claimant filed a cross-appeal, but has failed to file a motion to correct or a brief in support of its cross-appeal and has failed to appear at oral argument. Accordingly, we will not now consider the claimant’s reasons for the cross-appeal as those reasons are deemed abandoned. See Vigneri v. Utility Industrial Company, 12 Conn. Workers’ Comp. Rev. Op. 402, 1433 CRB-2-92-6 (Sept. 9, 1994).

We will first address the respondents’ contention that the commissioner failed to take into consideration the $300.00 per week paid by the employer to the claimant under its disability plan. The respondents raised this issue at the formal hearing. However, the respondents did not seek to enter a copy of the disability plan, nor have the respondents cited any case which has held that 31-308a benefits may be reduced by an employer’s disability plan payments. The trial commissioner did not make any findings regarding the disability plan payments. Accordingly, there are insufficient facts for this board to review the respondents’ contention that the disability plan payments should reduce the claimant’s benefit rate under 31-308a. We will therefore remand this limited issue to the trial commissioner. See Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 936 CRD-6-89-11 (March 19, 1991).

The commissioner found the following facts. The claimant suffered a compensable injury to his cervical spine on March 30, 1990 which was accepted by the respondents in a voluntary agreement. The claimant underwent fusion surgery due to the injury. The claimant was assessed a fifteen percent permanent partial disability of the neck for which he was paid 26.25 weeks of benefits which ended on July 24, 1992. The claimant was employed as a Chemical Operator B at Upjohn when he was injured, and his average weekly wage was $838.56. The claimant’s job duties included lifting fifty pound bags and rolling heavy drums. After his injury, the claimant was not able to perform the job duties of a Chemical Operator B, and the employer did not have any light duty work available for the claimant. In November of 1991 the claimant began working at a tavern owned by his sister, where his job duties were of a light duty nature. He earned approximately $85.40 per week from April 26, 1993 through May 21, 1993; $135.40 per week from May 21, 1993 through October 1, 1993; and $185.40 per week from October 2, 1993 through October 25, 1993. The claimant had a functional capacity evaluation which indicated that he could work thirty to forty hours per week in a light duty capacity. The respondents produced a labor market survey for the claimant which indicated that the claimant could perform several jobs, including that of a life insurance salesman at a rate of $400.00 per week.

The commissioner awarded the claimant temporary partial benefits under § 31-308a at the rate of $462.86 per week from April 26, 1993 through October 25, 1993.1 He based this rate upon his determination that the claimant was capable of earning $400.00 per week during this period. In addition, the rate was based upon the commissioner’s determination that the average weekly salary of a Chemical Operator B in 1993 was $1,094.29. The respondents contend that the $1,094.29 figure is improper because the claimant would have been laid off in 1991 due to a phasing out of the facility and because the facility was eventually closed.2 We note that there were four persons employed in the position of Chemical Operator B during the period from April 26, 1993 through October 25, 1993. (Transcript at p. 44). The respondents contend that because of the closing of the facility “the claimant had an obligation to proffer evidence that were he fully healthy he would have been able to find work at some other chemical/pharmaceutical company, and how much he would be earning in such a comparable position.” (Respondents’ Brief at p. 6). We disagree with this contention.

Section 31-308a, as it existed at the time of the claimant’s injury, provides a commissioner with discretion to award additional compensation benefits based upon:

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 weekly amount which such employee will probably be able to earn thereafter, to be determined by the commissioner based upon 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 . . . . If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury.

The language specifically refers to the “wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury.....” (Emphasis added).

In the instant case, the trial commissioner found that a Chemical Operator B at Upjohn was earning $1,094.29 per week during the period at issue. He further made an inference that this figure constituted “the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury” as required by 31-308a. This was a factual determination to be made by the trial commissioner. “The conclusions drawn by (the trial commissioner) from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Furthermore, the fact that the “inference... involves an application of a broad statutory term or phrase to a specific set of facts gives rise to no greater scope of judicial review.” Id. at 540. Because the commissioner’s determination was based upon a reasonable inference which was supported by the evidence, we will not disturb his conclusions.

The respondents have not presented evidence that there were no comparable positions in the state available to the claimant if he had been laid off from Upjohn, but rather contend that it is the claimant’s burden to prove otherwise. The claimant’s light duty restrictions and the vocational evaluations indicate that the claimant was not able to return to work in the chemical industry. (Findings No. 10-12 and 30-35). Although the respondents have presented no evidence that the claimant is physically able to return to work in the chemical industry, they nevertheless contend that the claimant has the burden of seeking work in the chemical industry in order to demonstrate the earnings which he could have earned had he not been injured. This is an unfair burden to place on a claimant, and we would not require the claimant to perform so futile an act. Rather, we must rely on the trial commissioner’s factual finding regarding “the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury” as required by 31-308a.

We note that the respondents rely on Ferrara v. Clifton Wright Hat Co., 125 Conn. 140 (1939). However, that decision addressed the issue of whether a claimant’s compensable dermatitis was the cause of his inability to find employment. The court affirmed the trial commissioner’s decision that the dermatitis did not impair the claimant’s earning capacity, and thus affirmed the commissioner’s denial of benefits under §5237 (now 31-308(a)). In the case at hand, the respondents do not dispute that the claimant’s earning capacity has been impaired due to his compensable cervical injury. The court’s decision in Ferrara is not dispositive in the instant matter, as it does not address the issue of the language of 31-308a as discussed above.

The trial commissioner’s decision is affirmed, and the case is remanded to the trial commissioner for the limited issue of whether the employer’s disability plan reduces the claimant’s § 31-308a benefits.

Commissioners Roberta Smith Tracy and Michael S. Miles concur.

1 This is the only period of 31-308a benefits being contested by the respondents. The respondents voluntarily paid 31-308a benefits to the claimant from July 24, 1992 through May 21, 1993 at the rate of $325.00. (Respondents’ Brief at p. 2). BACK TO TEXT

2 Finding No. G states that the Upjohn plant “has now been closed....” The respondents do not state the date on which the plant closed in their brief. BACK TO TEXT

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