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Degiacomo v. Arwood Corporation

CASE NO. 3486 CRB-01-96-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 21, 1998

ANGELO DEGIACOMO

CLAIMANT-APPELLANT

v.

ARWOOD CORPORATION

EMPLOYER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Lawrence J. Cappuccio, Esq., Cappuccio & Cappuccio, P.O. Box 763, Westerly, RI 02891.

The Second Injury Fund was represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120.

The respondent employer did not appear.

This Petition for Review from the December 4, 1996 Finding and Dismissal of the Commissioner acting for the First District was heard June 27, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 4, 1996 Finding and Dismissal of the trial commissioner acting for the First District. In that decision the trial commissioner found that the claimant had sustained a compensable injury to his left ear on January 30, 1990 for which he received compensation through September 27, 1994.1 The trial commissioner denied the claimant’s request for continued temporary total disability benefits pursuant to § 31-307, and also denied the claimant’s alternative claims for benefits under either § 31-308(a) or § 31-308a. In support of his appeal, the claimant contends that the trial commissioner erred in finding that the claimant did not continue to be totally disabled, or in the alternative was entitled to benefits under § 31-308(a) or § 31-308a. We find no error.

Whether a claimant is totally disabled from working pursuant to § 31-307 is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994); Haugh v. Leake & Nelson, 12 Conn. Workers’ Comp. Rev. Op. 201, 202-203, 1421 CRB-2-92-5 (March 15, 1994). We will not disturb a trial commissioner’s factual determination unless the conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, we may not disturb the trial commissioner’s conclusions which are dependent on the weight and credibility accorded the evidence. Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994), aff’d., 39 Conn. App. 935 (1995).

In the instant case, the trial commissioner’s conclusion that the claimant did not continue to be totally disabled is fully supported by the record. The trial commissioner did not find the claimant’s testimony regarding his alleged dizziness and alleged need to constantly take medication to be credible. The trial commissioner specifically found that the claimant “helps to manage” several income-producing rental properties which he owns, and that he cuts the lawns at these properties and at his own house. (Finding No. 15). Furthermore, the trial commissioner found that the claimant was able to drive and deliver trash to the local dump without any apparent difficulty. The trial commissioner’s conclusion that the claimant is not totally disabled is further supported by the opinions of Dr. Robertson and Dr. Woodworth, who opined that the claimant had a work capacity. (Finding No. 20). It was within the discretion of the trial commissioner, as the trier of fact, to determine that the claimant was not totally disabled under § 31-307 C.G.S. See Eligio v. DiLauro Brothers, 15 Conn. Workers’ Comp. Rev. Op. 253, 2212 CRB-3-94-11 (May 24, 1996).

Section 31-308(a) allows wage differential benefits to be paid in cases of partial incapacity. Section 31-308(a) provides for benefits when the claimant is “unable to perform his usual work”; the claimant is “ready and willing to perform other work in the same locality”; and “no other work is available.” Whether a claimant has satisfied these statutory criteria is a factual determination for the trial commissioner. Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995). Although our statutes do not require a claimant to perform a work search, it has been accepted as one evidentiary basis to demonstrate willingness to work and the availability of suitable light duty employment. Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996); Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 1111 CRD-4-90-9 (Jan. 28, 1992). Other evidentiary means may also be used to fulfill that requirement.

In the instant case, the trial commissioner found that the claimant was thirty-nine years old, spoke English and Spanish, and had a work capacity. Indeed, he was able to manage and maintain his rental properties. The claimant did not apply to the Department of Workers’ Rehabilitation, despite his testimony that he had done so. (Finding No. 17). His work searches were vague and did not include addresses of the employers. Under these circumstances, it was within the discretion of the trial commissioner to conclude that the claimant did not sustain his burden of proving that he was “ready and willing” to perform light duty work.

Finally, we will consider the claimant’s argument that he is entitled to further benefits pursuant to § 31-308a. We have recently explained that § 31-308a gives a commissioner discretion to award benefits 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). We have consistently held that an award of benefits under § 31-308a is discretionary, and thus as long as the statutory factors are considered, the trier’s decision must stand. Kulhawik v. Ace Beauty Supply, 15 Conn. Workers’ Comp. Rev. Op. 159, 2116 CRB-2-94-8 (Feb. 1, 1996); Wosnicki v. Meriden Yellow Cab, 12 Conn. Workers’ Comp. Rev. Op. 238, 240, 1509 CRB-8-92-9 (March 28, 1994). In this case, the commissioner clearly considered each one of the above listed factors in his decision. Moreover, as no motion to correct has been filed in this case, we are limited to reviewing the facts as found by the trial commissioner. Eligio, supra; Bell v. U.S. Home Care, 13 Conn. Workers’ Comp. Rev. Op. 294, 1792 CRB-1-93-8 (April 21, 1995), aff’d. 40 Conn. App. 934 (1996) (per curiam).

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The claimant received 180 weeks of temporary total disability benefits from January 30, 1990 through July 19, 1993; 52 weeks of permanent partial disability benefits from July 20, 1993 through July 18, 1994; and 10 weeks of § 31-308a benefits from July 19, 1994 through September 27, 1994. Pursuant to § 31-349, liability was transferred to the Fund effective January 28, 1992. (Finding No. 5 and 6). BACK TO TEXT

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