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Eligio v. DiLauro Brothers

CASE NO. 2212 CRB-3-94-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 24, 1996

PAUL ELIGIO

CLAIMANT-APPELLANT

v.

DILAURO BROTHERS

EMPLOYER

and

COMMERCIAL UNION INS. CO.

INSURER

and

NATIONWIDE INSURANCE CO.

INSURER

and

SHELBY INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by William Nulsen, Esq., 174 Bradley St., New Haven, CT 06510.

The respondent Commercial Union Insurance Co. was represented by David Weil, Esq., Nuzzo & Roberts, L.L.C., One Town Center, Cheshire, CT 06410.

The respondent Nationwide Insurance Co. was represented by David Chapman, Esq., Law Offices of Larry H. Lewis, 639 Research Parkway, Meriden, CT 06450.

The respondent Shelby Insurance Co. was represented by Chris Goulden, Esq., Mihaly & Kascak, 925 White Plains Road, Trumbull, CT 06611.

The Second Injury Fund was not represented at oral argument. Notice sent to Ernie Walker, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 9, 1994 Finding of Dismissal of C.G.S. 31-307 Claim of the Commissioner acting for the Third District was heard September 22, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the November 9, 1994 Finding of Dismissal of C. G. S. 31-307 Claim of the Commissioner acting for the Third District. He argues that the trial commissioner erroneously determined that he is not entitled to temporary total disability benefits under § 31-307. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant sustained a compensable lumbar spine injury in 1974 while working for R. K. Motors. He suffered a second lumbar sprain on November 30, 1978 while employed by the respondent DiLauro Brothers. Both of these injuries resulted in approved voluntary agreements for a five percent permanent partial disability of the back. An October 22, 1982 injury, also during the claimant’s employment with DiLauro Brothers, resulted in an approved ten percent permanent partial disability of the back. Despite a doctor’s advice that he discontinue auto body repair work, the claimant left DiLauro Brothers in 1983 to become co-owner of Ralph’s Auto Body, where he claimed to have aggravated his back several times between 1983 and 1988. The claimant stopped working in August, 1988 and has continued not working through the time of the formal hearing.

The claimant obtained no medical treatment for his back between 1983 and 1987. In October 1987, after a CAT scan disclosed a bulging disc, he was referred to Dr. Frankel. The claimant gave Dr. Frankel a history of frequent back pain, and the doctor performed an MRI test on him that indicated no disc herniation. Nonetheless, he opined that the claimant was disabled from continuing auto body work and that he could perform light duty work with a 25-pound lifting restriction and limited bending, twisting, and squatting. Dr. Frankel recommended that he apply for vocational retraining. At the request of the respondent Shelby Insurance Company, Dr. Margolis examined the claimant on February 10, 1989. He opined that the claimant had a 25 percent permanent partial disability, and that he was capable of light duty work. He reaffirmed that opinion in April 1991 after examining the claimant again. Finally, Dr. Goodman examined the claimant on August 11, 1993, and concurred in the opinion that the claimant could perform light duty work.

The trial commissioner noted that the claimant is 55 years old, was educated to the fifth grade level in Italy before moving to this country, and that he briefly worked as a baker before engaging in the profession of auto body repair. Citing the doctors’ opinions that the claimant was capable of light duty work, and the fact that the claimant did not look for light duty employment after August 1988, the commissioner concluded that the claimant had failed to prove entitlement to temporary total disability benefits and dismissed the claim. The claimant has appealed from that decision.

The claimant argues on appeal that there was ample evidence in this case to establish that the claimant was not an appropriate candidate for retraining once the totality of the circumstances is considered. He states that “all three doctors felt that based upon the age, education, diminished capacity and marked functional overlay (chronic pain syndrome), that the claimant could not be retrained or successfully reenter the workforce.” (Claimant’s brief, p. 18). Thus, denying benefits because the claimant did not attempt a work search was inappropriate.

The scope of our review on this appeal is limited by the failure of the claimant to file a Motion to Correct pursuant to Admin. Reg. § 31-301-4. Without such a motion, we may not question the factual findings of the trial commissioner. Krajewski v. Atlantic Aerospace Textron, 2120 CRB-6-94-8 (decided Nov. 28, 1995); Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994). Proposed corrections to the findings are necessary in order to give the factfinder an opportunity to reconsider the evidence, and to preserve the disputed findings for review. As no corrections were proposed, we presume the factual findings to be accurate in this case.

The commissioner found that the doctors agreed that the claimant had a light duty capacity. He also found that the claimant did not seek light duty work. Although not a part of the Workers’ Compensation Act, this Commission has accepted the light duty work search procedure as an evidentiary basis to demonstrate a willingness to work and, when no work is found, the unavailability of work. Boughton v. Kimberly Clark Corp., 14 Conn. Workers’ Comp. Rev. Op. 4, 1871 CRB-7-93-10 (April 28, 1995). A trial commissioner is entitled to surmise from a claimant’s failure to seek work that he has not proven entitlement to benefits under § 31-308(a). Id.; Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 45, 1111 CRD-4-90-9 (Jan. 28, 1992). The trial commissioner did so here. Moreover, the commissioner found that the medical evidence did not support a claim for total disability under § 31-307. Instead, he found that the evidence suggested he was capable of light duty employment. A claimant with a light duty work capacity would not qualify for total disability benefits. Therefore, that conclusion must also stand.

The trial commissioner’s decision is affirmed.

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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