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Bailey v. Stripling Auto Sales, Inc. d/b/a Willimantic Dodge/Nissan

CASE NO. 3095 CRB-2-95-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 28, 1996

ROY BAILEY

CLAIMANT-APPELLANT

v.

STRIPLING AUTO SALES d/b/a WILLIMANTIC DODGE/NISSAN

EMPLOYER

and

ALEXSIS, INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Brian Prucker, Esq., Fitzgerald & Prucker, 1127 Tolland Tpke., Manchester, CT 06040.

The respondents were represented by Raymond Hassett, Esq., Hassett, George & Siegel, P.C., 567 Franklin Ave., Hartford, CT 06114.

This Petition for Review from the June 12, 1995 Finding of the Commissioner acting for the Second District was heard June 14, 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 June 12, 1995 Finding of the Commissioner acting for the Second District. He argues on appeal that the trial commissioner improperly applied the standard for awarding benefits under § 31-308a C.G.S., and that she erred in not relying on the claimant’s Social Security status in making her decision. The claimant has also filed a Motion to Submit Additional Evidence in an effort to introduce proof that the trial commissioner was not competent to render her decision. We affirm the trial commissioner’s decision, and deny the Motion to Submit Additional Evidence.

The claimant suffered a compensable right hip injury on June 29, 1990, resulting in a 12.5 percent permanent partial disability. His maximum medical improvement date was December 18, 1991. The trial commissioner found that he was not entitled to temporary total disability benefits from July 27, 1992 to the present. She also found that he was not entitled to § 31-308a benefits, as he had not performed sufficient job searches. The claimant has appealed that decision.

The claimant argues that the commissioner misapplied the standard for awarding discretionary benefits. Section 31-308a provides in relevant part:

[T]he commissioner . . . may award additional compensation benefits for such partial permanent disability equal to two-thirds [now seventy-five percent] 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 the employee’s age. . . . The duration of such additional compensation shall be determined upon a similar basis by the commissioner.”

The statute is self-explanatory. The commissioner determines the propriety of an award based upon factors such as the employee’s age, training, education, marketability, and the severity of his injury. McGowan v. Waterbury Farrell, 1964 CRB-1-94-2 (decided Sept. 15, 1995); Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 180, 876 CRD-6-89-6 (Aug. 13, 1991). The commissioner’s decision is ultimately discretionary; as long as she has focused on his earning capacity, and considered the statutory factors, this board will not disturb her decision. Kulhawik v. Ace Beauty Supply, 2116 CRB-2-94-8 (decided Feb. 1, 1996).

Here, the commissioner found that the claimant was born on July 4, 1938, and has a ninth grade education. He performed job searches while he was receiving temporary partial disability benefits and permanent partial disability benefits. He testified that he did not keep track of his job searches while looking for work after receiving his specific benefits, and that he stopped looking for work after he applied for Social Security Disability benefits on June 21, 1993. The commissioner also found that the most recent medical evidence presented by the claimant at the formal hearing was a report from Dr. Moskowitz dated June 21, 1993, which concluded that the claimant’s complaints were out of proportion to any objective findings. The claimant testified that he had seen other doctors since then, but introduced no evidence to back up that claim. The commissioner thus concluded that the claimant had failed to establish entitlement to § 31-308a benefits.

Our Appellate Court recently held that other means of determining the availability of work aside from evidence of work searches had to be used in a case where a claimant sought § 31-308(a) benefits and there was evidence that the claimant had a limited work capacity. Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996). Here, however, the commissioner found that there was little or no evidence regarding the scope of the claimant’s current disability. The last medical report in evidence, a 1991 report by Dr. Moskowitz, released the claimant to return to “almost regular work” (minus heavy lifting or ladder climbing). Moreover, unlike § 31-308(a), § 31-308a makes an award of benefits discretionary. Whether or not the commissioner places a great deal of reliance on a claimant’s documentation of efforts to search for work under § 31-308a, the claimant still has the burden of proving entitlement to those benefits by demonstrating continuing disability of some kind. McGowan, supra. That was not done here. Thus, the commissioner properly exercised her discretion in denying § 31-308a benefits.

The claimant has also raised an argument regarding his Social Security records. The commissioner stated during the formal hearing that she was not interested in receiving into evidence Social Security records that allegedly demonstrated why the claimant was disabled, as they are based on a different standard and would have no bearing on her decision. (Transcript of May 9, 1995, p. 36). Interestingly, the claimant did not attempt to introduce these records; rather, the respondents had alluded to them, and the commissioner was attempting to restrict that line of questioning. No ruling was ever made on that issue, nor was a formal offer of evidence made by either party; thus, we do not believe that an appealable issue exists. We do note, however, that in Krajewski v. Atlantic Aerospace Textron, 2120 CRB-6-94-8 (decided Nov. 28, 1995), we stated that decisions of the Social Security Administration are indeed based on different standards than the decisions of this Commission, and that an SSA adjudication regarding total disability was unlikely to have a significant effect on the outcome of our own case.

Finally, the claimant has presented a Motion to Submit Additional Evidence to this board seeking a remand and trial de novo on the ground that the trial commissioner was incompetent at the time she rendered her decision. Because the claimant has not yet obtained the evidence he seeks to introduce, and consequently was unable to show the evidence to this board, he has not provided us with sufficient information to make a ruling under Admin. Reg. § 31-301-9. Even if the claimant had tendered his evidence to us, however, we would not have been able to address the issue that he has raised. The Workers’ Compensation Act does not vest the Compensation Review Board with the authority to determine the competency of a workers’ compensation commissioner. See, e.g., § 31-276 (governor may remove any commissioner for cause after notice and public hearing). Plainly, that issue is one that must be brought before a different forum.

The trial commissioner’s decision is affirmed, and the Motion to Submit Additional Evidence is denied.

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

Workers’ Compensation Commission

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