CASE NO. 3522 CRB-04-97-01
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 15, 1998
CONNECTICUT FINEBLANKING CORP.
LIBERTY MUTUAL INSURANCE
The claimant was represented by James Giulietti Esq., Giulietti & Morytko, LLC, 22 Broadway, North Haven, CT 06473-2301.
The respondents were represented by Steven Howe, Esq., Law Office of Robert M. Brennan, One Century Tower, 265 Church St., New Haven, CT 06510-7014.
This Petition for Review from the January 3, 1997 Finding and Award of the Commissioner acting for the Fourth District was heard September 5, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 3, 1997 Finding and Award of the trial commissioner acting for the Fourth District. In that decision the trial commissioner awarded the claimant benefits pursuant to § 31-308(a) for the period from July 9, 1996 through November 18, 1996. In support of their appeal, the respondents contend that the medical evidence does not support the determination that the claimant was entitled to benefits under § 31-308(a). We find no error.
The trial commissioner found the following relevant facts. The claimant sustained a compensable injury to his back on May 8, 1996, and was totally disabled from June 11, 1996 through July 8, 1996. Effective July 9, 1996, the claimant’s treating physician, Dr. Brown, released the claimant to light duty. The claimant attempted to return to a light duty position with the respondent employer on July 9 and again on July 10, 1996. The light duty position provided by the employer required standing, and “after several hours of standing at the machine he was unable to perform the light duty work.” (Finding No. 4, as amended by granting of Motion to Correct). In a report dated August 13, 1996, Dr. Brown states that the claimant’s injury may require lumbosacral fusion. Dr. Brown also states in that report that the claimant’s work restrictions were to avoid “prolonged standing or repetitive bending or lifting in excess of twenty pounds.” (Claimant’s Exh. A; Finding No. 8).
Section 31-308(a) allows wage differential benefits, or full weekly compensation rate benefits, to be paid in cases of partial incapacity. Specifically, § 31-308(a) provides for full benefits when: “(1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the claimant is ready and willing to perform other work in the same locality, and (3) no other work is available.” Whether a claimant has satisfied these statutory criteria is a factual determination for the trial commissioner. See Shimko v. Ferro Corp., 40 Conn. App. 409, 412-13 (1996); see also Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995). 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 was entitled to § 31-308(a) benefits from July 9, 1996 through November 18, 1996 is fully supported by the record. Specifically, the trial commissioner found that the claimant attempted to perform the light duty position provided by the employer, but was physically unable to do so. The trial commissioner’s determination is supported by the opinion of Dr. Brown, who limited the claimant’s light duty status to avoid prolonged standing. Certainly, under the facts in this case it was reasonable for the trial commissioner to infer that Dr. Brown’s opinion was relevant to the period at issue. Moreover, Dr. Glass, an orthopedic surgeon, performed an independent medical examination on October 2, 1996 at the request of the respondents. Dr. Glass indicated that the claimant was still substantially symptomatic and precluded from any bending or lifting as well as full time standing and walking. (Finding No. 9). Furthermore, Dr. Glass opined that the claimant had not reached maximum medical improvement and may need fusion surgery.
In further support of their appeal, the respondents contend that the claimant failed to perform adequate job searches. Our statutes do not require a claimant to perform a work search, however, it has been accepted as one evidentiary basis to demonstrate willingness to work and the availability of suitable light duty employment. Shimko, supra, at 414; 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 attempted to return to the light duty position with the employer but was physically unable to perform that job. The trial commissioner further found that as soon as the claimant was informed of his need to perform job searches, he immediately did so and submitted said records into evidence. It was within the discretion of the trial commissioner to conclude that the claimant sustained his burden of proof that he was ready and willing to perform light duty work, and that he was unable to perform the light duty position offered by the employer. See Shimko, supra; Wright, supra.
In further support of their appeal, the respondents contend that the trial commissioner erred in denying in part their Motion to Correct, and in denying their Motion for Extension of time to file the Motion to Correct. A motion to correct must be filed within two weeks after the trial commissioner’s decision is issued, “unless the time is extended for cause by the commissioner.” Conn. Agencies Reg. § 31-301-4. The trial commissioner was not required to grant the motion for extension of time.1 We note that although the respondents contend that receipt of the transcript was needed in order to formulate its Motion to Correct, nevertheless the respondents filed a timely Motion to Correct and did not amend the Motion to Correct after receiving the transcript. Furthermore, we find no error in the trial commissioner’s ruling on the Motion to Correct, which granted in part the respondents’ motion. See Simmons v. Bonhotel, 40 Conn. App. 278, 287 (1996) (a motion to correct need not be granted where the ultimate conclusion of the commissioner would not be altered by the substituted findings).
Finally, we will consider the respondents’ argument that the record does not support the trial commissioner’s order that the respondents pay attorney’s fees pursuant to § 31-300. The respondents contend that the trial commissioner did not make any findings of fact which support a conclusion of unreasonable contest or undue delay. We disagree. In the instant case, the trial commissioner found that the claimant’s treating physician, Dr. Brown, limited the claimant’s light duty status, and that the employer failed to provide the claimant with a suitable light duty position. Moreover, at the request of the respondents, Dr. Glass performed an independent medical examination on October 2, 1996. Dr. Glass indicated that the claimant was still substantially symptomatic and precluded from any bending or lifting as well as full time standing and walking. Under these findings of fact, the trial commissioner did not abuse her discretion in awarding interest and attorney’s fees pursuant to § 31-300. See Sanchez v. Steben’s Motors, Case No. 3247 CRB-6-96-1 (Dec. 24, 1996). The respondents argue that the trial commissioner failed to specify the interest rate, and we therefore remand this matter to the trial commissioner solely in order to specify the interest rate.
The trial commissioner’s decision is affirmed, and this matter is remanded solely in order for the trial commissioner to specify the interest rate.
Commissioners James J. Metro and John A. Mastropietro concur.
1 We find the following quote to be applicable. “Underneath all of these motions, there is somewhere buried the principle that the Workers’ Compensation Act is remedial in nature and should be construed to accomplish its humanitarian purpose. Dubois v. General Dynamics Corp., 222 Conn. 62, 67 (1992). A necessary element of this principle is the idea that relief under the Act will be provided as quickly and efficiently as possible. A claimant who is disabled from employment by a work-related injury is usually in need of prompt financial attention as well as medical attention, for the inability to earn wages has an immediate negative impact on the lives of most claimants. Yet, this concept often becomes lost in the partisan battles between employers, employees, insurers, medical providers, and their numerous attorneys.” Schiano v. Bliss Exterminating, Case No. 3315 CRB-4-96-4 (May 16, 1997). BACK TO TEXT