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Levey v. Farrel Corp.

CASE NO. 3649 CRB-04-97-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 30, 1998

RONNIE LEVEY

CLAIMANT-APPELLANT

v.

FARREL CORP.

EMPLOYER

and

ZURICH AMERICAN INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Daniel Skuret, Esq., 215 Division Street, P. O. Box 158, Ansonia, CT 06401.

The respondents were represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the July 10, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District was heard March 27, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Amado J. Vargas

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 10, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District. He contends on appeal that the trier erred by failing to make an independent determination as to why his employment was terminated, and thus erred in dismissing his claim for § 31-308(a) benefits. We affirm the trial commissioner’s decision.

Initially, we note that the claimant did not file a Motion to Correct in conjunction with his appeal. By failing to give the trial commissioner the opportunity to reconsider his factual findings, the claimant has limited himself on appeal to the findings present in the commissioner’s decision. See Admin. Reg. § 31-301-4; Vanzant v. Hall, 219 Conn. 674, 679-80 (1991). Accordingly, this board must presume that the facts found by the trier in his Finding and Dismissal are accurate. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996).

Those findings reflect that the claimant suffered compensable injuries to his back, shoulder, neck and chest on March 13, 1996. He was released to light duty work by his treating physician, and the respondent Farrell Corp. made such work available to him at his regular hourly rate. On June 7, 1996, the claimant was terminated for cause, which termination was sustained through the grievance process. He began to look for light duty work, and seeks temporary partial disability benefits for the period of March 13, 1996 through December 10, 1996. The respondents denied those benefits on the ground that the claimant could have worked for Farrel Corp. on a light duty basis throughout that time period had he not been terminated for cause. The trial commissioner ruled that the claimant had not met his burden of proof establishing entitlement to § 31-308(a) benefits, and dismissed the instant claim.

The essential issue that remains before this board on review is whether the trier correctly applied the law to the facts that she found in her decision. See Seltenreich, supra, 136-37, citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). These facts include the finding in ¶ 7 that the claimant was terminated for cause. The claimant has raised arguments concerning the evidence that was presented regarding his termination and contends that he did not get the opportunity to fully litigate that issue in arbitration. The trial commissioner did not phrase her findings in terms of collateral estoppel, however. Without a Motion to Correct having been filed by the appellant, this board does not have the authority to question the finding in ¶ 7 or to delve into the evidence to ascertain whether there is insufficient support for that finding. See Vanzant, supra, 679. We must presume that the finding that “the claimant was terminated for cause” has adequate support in the record.

That being the case, it would follow that the trial commissioner had sufficient reason to deny the claimant’s § 31-308(a) claim for temporary partial disability compensation. The statute entitles a claimant to 75% of the difference between the wages currently being earned by an employee in a position comparable to the position that the injured employee held before his injury and the wages that the claimant “is able to earn” after the injury. The statute also provides that if an employer procures suitable light duty employment for an injured employee, the wages offered in that employment shall be taken as the claimant’s earning capacity during the period of the employment. The commissioner specifically found that the claimant was able to earn the same salary he had been earning previous to the injury while he was performing light duty work for Farrel Corp. Thus, there would be no wage loss differential under § 31-308(a).

The fact that the claimant was terminated from his employment for cause would not require that he be awarded benefits subsequent to the date of his termination. We have held that a claimant who refuses a light duty position that would have paid him the same amount of money as his previous job is not entitled to lost earning capacity benefits under § 31-308(a). Donovan v. United Technologies, 7 Conn. Workers’ Comp. Rev. Op. 5, 632 CRD-4-87 (June 9, 1989). See also Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 1581 CRB-7-92-12 (Dec. 7, 1994) (claimant not entitled to total disability or § 31-308a benefits if he is capable of gainful employment but simply chooses not to pursue it). Where a claimant is terminated for cause, the trier has the discretion to consider such a dismissal from employment tantamount to a refusal to perform a suitable light duty position for the purposes of § 31-308(a). If not for his own actions, the claimant in this case would have been able to earn the same salary he was earning before his injury, and would not have been entitled to temporary partial disability benefits. Thus, we do not believe that the commissioner erred in denying an award of such benefits based on the facts found in this matter.

The trial commissioner’s decision is affirmed.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.

Workers’ Compensation Commission

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