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Loomis v. Colchester Egg Farm

CASE NO. 3047 CRB-5-95-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 10, 1996

RAYMOND G. LOOMIS

CLAIMANT-APPELLANT

v.

COLCHESTER EGG FARM

EMPLOYER

and

KEMPER INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Francis J. Grady, Esq., Grady & Riley, 86 Buckingham St., Waterbury, CT 06710.

The respondents were represented by Polly L. Orenstein, Esq., 127 Washington Ave., P. O. Box 35, North Haven, CT 06473.

This Petition for Review from the April 19, 1995 Finding and Award of the Commissioner acting for the Fifth District was heard March 15, 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 claimant has petitioned for review from the April 19, 1995 Finding and Award of the Commissioner acting for the Fifth District. He argues on appeal that the commissioner erred in determining the duration of his benefits pursuant to § 31-308a C.G.S. We affirm the trial commissioner’s decision.

The claimant suffered a compensable knee injury during the course of his employment with the respondent Colchester Egg Farm on February 22, 1985. He attempted to return to his truck driving job in 1989, but experienced continued difficulty, and was advised to pursue a desk-type job by Dr. Garver. He was compensated for a fifteen percent permanent partial disability of the knee, which translated into 35.7 weeks of benefits at $381.00 per week; he was later paid 69 weeks of benefits pursuant to § 31-308a at the same rate. Those benefits expired on November 22, 1992.

The claimant testified that he entered college in 1990 and received an accounting degree, and that he was currently working toward a bachelor’s degree in computer science. The commissioner found that the claimant had difficulty finding a job, but finally secured a position as a mail room attendant, which became full-time in December 1992. Subsequent raises in pay were detailed in the Finding and Award; however, they did not approach the amount of money that the claimant would have been making if he had been able to continue truck driving. The commissioner ruled that the claimant was entitled to 60 weeks of additional benefits under § 31-308a in the amount of $381.00 per week, the applicable maximum compensation rate. He denied the claimant’s claim for benefits from January 1, 1994 to the date of the formal hearing. The claimant has appealed that decision.

The claimant argues that the commissioner abused his discretion by failing to explain the basis of his decision to award only 60 weeks of § 31-308a benefits. At the time of the claimant’s injury, § 31-308a provided:

In addition to the compensation benefits provided by section 31-308 for . . . any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to two-thirds 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 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, but not more than the maximum provided in section 31-309. . . . The duration of such additional compensation shall be determined on a similar basis by the commissioner.

According to the claimant, the commissioner’s failure to state the basis for limiting the duration of his award has deprived the claimant of a meaningful opportunity to have that decision reviewed here on appeal, thus denying him his due process rights. He also argues that it is inconsistent with Admin. Reg. § 31-301-3, which authorizes the filing of a memorandum of decision where it may be helpful in deciding a case.

We have recently explained that § 31-308a gives a commissioner discretion to determine the duration of a claimant’s award based on such factors as the claimant’s age, training, marketability, education, and the severity of his injury. Richmond v. General Dynamics Corp., 13 Conn. Workers’ Comp. Rev. Op. 345, 346, 1825 CRB-2-93-8 (April 27, 1995). As long as a commissioner considers the appropriate factors in making his decision, his conclusions are considered purely discretionary, and are extremely unlikely to be disturbed on appeal. Id., 346-47; see also Kulhawik v. Ace Beauty Supply, 2116 CRB-2-94-8 (decided Feb. 1, 1996). In this case, the commissioner clearly considered each one of those factors in his Finding and Award, and applied those criteria in concluding that the claimant should receive 60 weeks of discretionary benefits. He was not required to explain why he did not award the maximum number of possible weeks of benefits, just as he would not have been required to explain himself if he had denied such an award entirely. See Wosnicki v. Meriden Yellow Cab, 12 Conn. Workers’ Comp. Rev. Op. 238, 240, 1509 CRB-8-92-9 (March 28, 1994) (partial disability did not mandate an award of § 31-308a benefits in and of itself, as such an award is discretionary).

Moreover, the regulation cited by the claimant states that a commissioner’s finding “should not contain excerpts from evidence or merely evidential facts, nor the reasons for his conclusions. The opinions, beliefs, reasons and argument of the commissioner should be expressed in the memorandum of decision, if any be filed, so far as they may be helpful in the decision of the case.” Admin. Reg. § 31-301-3 (emphasis added). The meaning of this provision is clear: a commissioner is generally not required to explain why he finds one witness more credible than another, or how he has arrived at a final decision after culling through the evidence. It is enough that he provides factual findings supported by the record that provide a rational basis for his legal conclusion. See Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Contrary to the claimant’s assertion, the language of § 31-301-3 is discretionary, and does not require the filing of a memorandum of decision accompanying the commissioner’s decision. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 73, 1859 CRB-5-93-9 (May 12, 1995). As we stated in Webb, it would impinge on the discretion of the trial commissioner if he or she were required to justify each step behind the exercise of his or her discretion.

We can discern no abuse of the commissioner’s discretion in this case in limiting the duration of the claimant’s § 31-308a award to 60 weeks. Consequently, the trial commissioner’s decision is affirmed.

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

Page last revised: May 11, 2005

Page URL: http://wcc.state.ct.us/crb/1996/3047crb.htm

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