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Katsigiannis v. Par Painting, Inc.

CASE NO. 3639 CRB-04-97-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 7, 1998

MICHAEL KATSIGIANNIS

CLAIMANT-APPELLANT

v.

PAR PAINTING, INC.

EMPLOYER

and

HARTFORD ITT INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Ralph A. Russo, Esq., 150 North Main Street, Manchester, CT 06040.

The respondents were represented by Richard Aiken, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

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

This Petition for Review from the June 27, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District was heard February 20, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 27, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District. He argues on appeal that the trier improperly denied his request for § 31-308a1 benefits. We affirm the trial commissioner’s decision.

The claimant sustained a compensable injury on November 6, 1993, leaving him with a 10% permanent partial disability of the cervical spine and a 20% permanent partial disability of the back, as per two approved voluntary agreements. The claimant alleges a loss of earning capacity concordant to this disability, and now seeks § 31-308a benefits in addition to the specific indemnity benefits he has already received. The trier found that the claimant was born in 1958 and raised in the country of Greece. His education consists of six years of elementary school. He testified that he worked as a farmer and a contractor in Greece, building houses and doing roofing. He came to the United States in 1984, settling in a Greek community in Astoria, New York, which is part of the borough of Queens. The claimant is fluent in Greek, but speaks and writes little English. Between 1984 and 1993, he performed odd jobs painting, digging and roofing. He is not a U.S. citizen, but does have a green card that allows him to work in this country.

Two months before his injury, the claimant accepted a job with the respondent Par Painting, Inc. that involved high-risk work painting bridges. He was earning $1,572.48 per week at the time he injured his back and neck. He has not worked since November 1993. The commissioner stated in her findings that the claimant made no effort to learn to read and write English or to seek retraining for other employment during the time he collected permanent partial disability benefits. She also noted the claimant’s testimony that he had not sought any work since June 26, 1996, except for one or two occasions. The job search forms submitted by the claimant for the May 20 - June 26, 1996 period only showed employer contacts from Astoria, New York. The claimant testified that he has not looked for employment in Connecticut since his compensable injury.

In accordance with the testimony of Raymond Cestar, a vocational rehabilitation specialist, the trial commissioner found that the claimant cannot return to bridge painting based on his medical records, but can do other kinds of unskilled work at a sedentary level such as monitoring surveillance systems or working as a cafeteria attendant. Cestar did not believe that the claimant’s language problems affected his vocational ability, as he would be limited to unskilled jobs even if he spoke fluent English. Noting that the claimant had only worked for Par Painting for two months, and had never earned anywhere near $1,572 per week at any other time in his life, the trier declined to fix the claimant’s earning capacity at his pre-injury wage rate.

Instead, the commissioner focused on the claimant’s limited job search records and his failure to demonstrate credible job search efforts in Connecticut. She referred to the claimant’s remarks that he believed he was unable to work, that he generally relied on relatives to obtain work for him, and that he had no energy to learn English or to seek retraining. She concluded that there was no real loss of earning capacity here, as the claimant’s background documented only odd jobs, he did not believe he was capable of doing much, and if he was going to work, he wanted to work in Astoria, where his family and friends are located. The commissioner also believed that the claimant’s earnings now would be approximately the same as those he earned before his September 1993 employment with Par Painting, and denied his request for § 31-308a benefits. The claimant has appealed that decision.

Section 31-308a(a) requires that a claimant be willing and able to perform work in the state of Connecticut in order to receive additional benefits for permanent partial disability. Subsection (b) of that statute also states that the nature of the injury and its effect on the claimant’s earning capacity must warrant additional compensation. Whether or not a claimant meets these criteria is a question of fact for the trial commissioner to resolve. This board may alter a trial commissioner’s factual findings only insofar as they contain facts found without evidence, or insofar as they omit material and undisputed facts. Pontoriero v. Sanzo Concrete Construction Co., 3492 CRB-4-96-12 (March 6, 1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). As the fact-finder, the trial commissioner is fully entitled to weigh the credibility of all of the evidence and testimony that the parties offer. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997).

The testimony given by the claimant and Raymond Cestar fully supports the trial commissioner’s conclusion that the claimant was not willing and able to perform work in the state of Connecticut. The claimant’s testimony directly establishes that his efforts to search for employment were limited to a two-month period of time in 1996; October 10, 1996 Transcript, p. 33; and that he has never looked for jobs or sought vocational retraining in Connecticut. Id., 21, 28, 34; see also January 7, 1997 Transcript, p. 29-34. Cestar testified that the claimant presently has the ability to earn $5 to $8 per hour performing unskilled labor in Connecticut, with or without a knowledge of English. Id., pp. 12-16. Based on the claimant’s halfhearted efforts to find work, and his lack of effort to seek employment in the state of Connecticut, it was reasonable for the trial commissioner to infer that the claimant was not prepared to seek employment here, and was thus ineligible for § 31-308a benefits. Therefore, we must affirm the trial commissioner’s decision.

With respect to the issue of earning capacity, we observe that the claimant does not appear to have introduced evidence as to the earnings of a Par Painting employee currently working in the claimant’s former position, which is a prerequisite of calculating lost earning capacity under § 31-308a. See October 10, 1996 Transcript, p. 45. The absence of this information would certainly have made it difficult for the trial commissioner to perform the statutorily-mandated wage comparison, and provides an additional ground for our affirmance of the trier’s decision.

However, we do agree with certain points argued by the claimant on appeal. The fact that the claimant only worked at Par Painting for two months before being injured does not lead to the conclusion that the claimant’s loss of earning capacity should be calculated independently of that employment. If the claimant had not been injured, he would presumably be able to continue working for Par Painting, and would be making much more than a few hundred dollars per week (assuming that the claimant could demonstrate that such employment is still available to other Par Painting employees at a similar pay scale). Although the trier is neither forbidden from nor bound to consider whether a claimant is maximizing his post-injury earning potential in evaluating a claim for § 31-308a benefits; see Pontoriero, supra; Genovesi v. Choice Designs, 13 Conn. Workers’ Comp. Rev. Op. 218, 220, 1745 CRB-5-93-6 (April 12, 1995) (performance of a job is acceptable but not irrefutable evidence of current earning capacity); she should not ignore the fact that a claimant was performing a particular job at the time he was injured in calculating the difference between his pre-injury and post-injury earning capacity merely because the claimant had only been working at that job a short time. Other evidence, e.g., a showing that such employment was unlikely to continue indefinitely at the same wage scale due to the temporary nature of the employment, and that such work would be unavailable to the claimant again in the future, should be considered before omitting a claimant’s pre-injury employment from the § 31-308a(a) calculation of his earning capacity.

The trial commissioner’s decision is affirmed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 Section 31-308a C.G.S. provides: (a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or 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 seventy-five per cent 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, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, 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 one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.

(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation. BACK TO TEXT

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