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Johnston v. Thames Permacrete Corp.

CASE NO. 2278 CRB-2-95-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 16, 1996

DWAYNE JOHNSTON

CLAIMANT-APPELLEE

v.

THAMES PERMACRETE CORP.

EMPLOYER

and

AMERICAN POLICYHOLDERS CORP.

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by James P. Berryman, Esq., Suisman, Shapiro, Wool, Brennan & Gray, 2 Union Plaza, P. O. Box 1591, New London, CT 06320.

The respondents were represented by Michael J. Finn, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033.

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

This Petition For Review from the January 25, 1995 Finding and Award of the Commissioner acting for the Second District was heard January 12, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the January 25, 1995 Finding and Award of the Commissioner acting for the Second District. The respondent argues that the trial commissioner abused her discretion in awarding benefits under § 31-308a C.G.S., that she erred in failing to incorporate relevant and material facts in her Finding and Award of January 25, 1995 and that she erred in awarding § 31-308a benefits beyond the period of permanent partial disability. After consideration of these arguments, we affirm the trial commissioner’s decision.1

The claimant sustained a compensable right foot crush injury on April 12, 1988, which resulted in a 50% permanency rating. After having surgery on September 2, 1992 and being released for light duty on November 18, 1992, the claimant sought benefits under §§ 31-308(a), (c), and 31-308a, along with attorneys’ fees and/or interest pursuant to § 31-300 C.G.S. The trial commissioner dismissed the claims for § 31-308(a) and (c) benefits, but awarded § 31-308a benefits for the period of November 19, 1992 through December 31, 1993 at the rate of $207.05 per week, and from January 1, 1994 through October 26, 1994 at the rate of $122.89 per week. The respondents were also ordered to pay all reasonable medical expenses. The claim for attorneys’ fees was dismissed.

Once a § 31-308 specific indemnity award has been exhausted, § 31-308a permits the commissioner to award benefits where a claimant’s earning power has been adversely affected by a work-related injury. Burgos v. United Technologies/Sikorsky Aircraft Division, 12 Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 1994). The commissioner is required to consider the “nature and extent of the injury, the training, education and experience of the employee, [and] the availability of work for persons with such physical condition . . . at the employee’s age. . .” in determining the duration and amount, if any, of such an award. See Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 180, 876 CRD-6-89-6 (Aug. 13, 1991). “As a general rule, absent consideration of improper factors in decisionmaking . . . this board is extremely unlikely to find that a commissioner has abused his or her discretion in awarding or denying § 31-308a benefits.” Richmond v. General Dynamics, 13 Conn. Workers’ Comp. Rev. Op. 345, 347, 1825 CRB-2-93-8 (April 27, 1995).

The respondents raise several arguments challenging the evidentiary basis for the § 31-308a award and the denial of most of their requested corrections. For instance, they object to the commissioner’s exclusion of a clause that surgery was not recommended by Dr. Sprafke, the treating orthopedist, and that the claimant did not want surgery, which the respondents argue signifies that claimant was at an endpoint for medical treatment. This correction, however, depends on an assessment of the credibility of evidence and testimony. It has long been held that the trial commissioner is the finder of fact during a formal hearing, and has the power to determine the credibility of the evidence. Fair v. People’s Bank, 207 Conn. 535, 540 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This board does not retry the facts or reconsider the evidence. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). From these legal standards it is proper to conclude that if evidence exists to support a commissioner’s findings, they will not be overturned for omitting evidence she did not find persuasive. There was evidence in the record to support all of the findings challenged in the claimant’s Motion to Correct.

The respondents also object to the commissioner’s failure to mention that if the employer was still in business, the claimant would have voluntarily returned to his pre-injury position. Medical testimony indicates, though, that because of claimant’s injury he climbs stairs with much difficulty, can stand only for short periods without feeling great pain, and is not fit to perform the work required by his pre-injury position. Further, a Labor Market Survey concedes that claimant’s earning capacity was reduced as a result of his injury. Such evidence in conjunction with the claimant’s training, education and experience provides a sufficient basis to establish that the claimant’s earning potential was adversely affected by his injury and not due solely to economic conditions.

The respondents further propose that the claimant should not be awarded benefits beyond November 18, 1992 because he failed to submit job searches for that period. However, as stated in Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 195, 1721 CRB-1-93-5 (March, 22, 1995), “a job search is not the only evidentiary means by which a commissioner may determine that a claimant qualifies for a discretionary award of benefits.” Other evidence may also provide proof that the claimant is not employable, or is unable to make the same wages as he did previously.

Here, the claimant held two or three jobs during almost the entire time period in question, some of which strained his work restrictions, and was specifically found to have a strong work ethic and to have made “laudable efforts to maximize his earning capacity.” These jobs did not happen to provide the claimant with as much income as he had before he was injured, however. The fact that the claimant did not continue to look for higher-paying jobs did not prevent the commissioner from basing his earning capacity on the jobs he was actually performing. Genovesi v. Choice Designs, Inc., 13 Conn. Workers’ Comp. Rev. Op. 218, 220, 1745 CRB-5-93-6 (April 12, 1995). The commissioner was not outside her discretion in determining that the claimant had proven entitlement to § 31-308a benefits on the evidence before her.

The respondents also contend that the commissioner erred by awarding § 31-308a benefits beyond the period of permanent partial disability. Section 31-308a as enacted presently does not allow additional benefits to be awarded beyond the length of permanent partial disability. The statute did not limit the period of entitlement for dates of injury in 1988, however. The Connecticut Supreme Court has explained that “new workers’ compensation legislation affecting rights and obligations as between the parties, and not specifying otherwise, applie[s] only to those persons who received injuries after the legislation became effective, and not to those injured previously.” Iacomacci v. Trumbull, 209 Conn. 219, 222 (1988). The change to § 31-308a legislation is clearly a substantive one. This board thus will not limit the duration of the commissioner’s § 31-308a award. See also Richmond, supra, 346.

The trial commissioner’s decision is affirmed.

Commissioners George A. Waldron and Robin L. Wilson concur

1 The Second Injury Fund also filed an appeal from the trial commissioner’s decision, which was withdrawn on November 8, 1995. BACK TO TEXT

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