CASE NO. 3990 CRB-02-99-03
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 7, 2000
CONTINENTAL FIELD MACHINE
ROYAL INSURANCE CO.
The claimant was represented by Brian Prucker, Esq., Fitzgerald & Prucker, 212 Talcottville Road, Rte. 83, Vernon, CT 06066.
The respondents were represented by James L. Sullivan, Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.
This Petition for Review from the March 2, 1999 Findings of Facts, Award in Part, Dismissal in Part by the Commissioner acting for the Second District was heard September 10, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Stephen B. Delaney and Amado J. Vargas
JESSE M. FRANKL, COMMISSIONER. The respondents have petitioned for review from the March 2, 1999 Findings of Facts, Award in Part, Dismissal in Part by the Commissioner acting for the Second District. They argue on appeal that the record and the subordinate findings do not support the trier’s award of 211 weeks of § 31-308a benefits at a compensation rate of $491 per week. We agree with some of the respondents’ observations, and remand this matter to the trial commissioner with instruction that he recalculate the benefits due the partially disabled claimant.
This case originated with the claimant suffering a low back injury on August 11, 1992, while working as a field machinist for the respondent Continental Field Machine, a company based in the state of Georgia. A commissioner determined that the injury was compensable in a June 18, 1996 Finding and Award of Compensation. Pursuant to a stipulation of facts between the parties, she found that the claimant was totally disabled from September 3, 1992 to December 8, 1992, temporarily partially disabled from December 12, 1992 through August 1, 1994, totally disabled again from August 19, 1994 through September 13, 1994, and thereafter temporarily partially disabled through the date of the last formal hearing. He had received workers’ compensation benefits under Georgia law for this entire period of time.1
The claimant had an average weekly wage of $1,378.93 on the date of his injury, which the parties agreed entitled him to the maximum weekly compensation rate for total incapacity ($737 as of August 11, 1992), and the maximum weekly rate for partial incapacity ($491). The trier ordered that he be compensated from December 8, 1992 through August 14, 1994 at the rate of $491 per week, which timespan encompassed a July 20, 1993 maximum medical improvement date with a 5% permanent partial impairment rating to the claimant’s lower back. He was then to receive benefits from August 19, 1994 to September 13, 1994 at the applicable $793 per week temporary total disability maximum rate. The trier noted in ¶ 33 of her findings that the claimant also sought § 31-308a discretionary benefits beyond that date, but stated that the issue “is not before the undersigned for decision.” Neither party moved to correct this Finding and Award, nor was an appeal filed.
The claimant subsequently commenced a separate action for further § 31-308a benefits. The trial commissioner to whom the case was assigned took administrative notice of the previous commissioner’s Finding and Award, including her finding that the claimant was totally disabled from September 3, 1992 through December 8, 1992. March 2, 1999 Award, ¶ 13. The trier also stated that the previous commissioner had “found the claimant’s lost earning capacity to be $491.00 per week.” Id., ¶ 10. He included a finding reflecting that the claimant was currently working as a shop machinist, rather than at the more physical job of field machinist, because he had a permanent 50-pound lifting restriction and had been advised by his physician not to bend, squat or stoop. The claimant had testified that field machinists were currently earning over $2,000 per week, and that his wage loss was at least $1,200 per week due to the effects of his injury.
On the strength of these findings, the trial commissioner concluded that the claimant should receive § 31-308a benefits from September 14, 1994 to October 2, 1998 at the rate of $491 per week. He also ordered that the claimant be paid temporary total disability benefits for the interval between September 3, 1992 and December 8, 1992, as per the previous commissioner’s findings, and ordered the respondents to pay the claimant his 5% permanent partial disability award, with credit to be taken for payments made under Georgia law. The respondents have appealed that decision, along with the complete denial of their Motion to Correct.
At the time of the claimant’s injury, § 31-308a provided that, in addition to § 31-308 specific indemnity benefits, a commissioner may award additional compensation for a permanent partial disability “equal to eighty 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 . . . , 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 at the employee’s age . . . .” Absent evidence of exact loss of earnings, 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.” In 1993, the statute was amended to limit the duration of § 31-308a benefits to the duration of the employee’s permanent partial disability award, but that restriction is not retroactively applicable to prior injuries. Merola v. The Jackson Newspaper, Inc., 3344 CRB-3-96-5 (Oct. 27, 1997).
The respondents argue that the trier nonetheless abused his discretion by awarding 211 weeks of additional permanent partial disability benefits for the claimant’s injury. Absent an abuse of discretion, such as the consideration of improper factors by the commissioner in making his decision, this board will not reverse such an award. Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 295 (1999); Richmond v. General Dynamics Corp./Electric Boat Div., 13 Conn. Workers’ Comp. Rev. Op. 345, 347, 1825 CRB-2-93-8 (Apr. 27, 1995). The trial commissioner is, of course, the individual charged with determining the credibility of the evidence, and this board has no authority to second-guess his impressions on review. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
Contrary to the respondents’ assertions, the trier accounted (both explicitly and implicitly) for most of the relevant statutory criteria in deciding that the claimant was still eligible for benefits. He mentioned the claimant’s permanent lifting restriction and his inability to bend, squat or stoop, which prevented him from continuing to work as a field machine operator. He noted the inadvisability of surgical intervention, which suggests that there is no evidence that the claimant’s condition is likely to improve. As for the availability of work for the claimant, the commissioner was entitled to accept his performance of the job of shop machine operator as proof of his current earning capacity. Genovesi v. Choice Designs, Inc., 13 Conn. Workers’ Comp. Rev. Op. 218, 220, 1745 CRB-5-93-6 (Apr. 12, 1995). This job allegedly pays the claimant $880 per week—a good wage, but less than the $1378.93 per week that the claimant earned before his injury. See Respondents’ Brief, p. 7. The respondents have not introduced evidence to show that the claimant could be making more money at another job. See Genovesi, supra. All of these facts are legally compatible with the trier’s decision to award the claimant four years’ worth of § 31-308a benefits based on his diminished earning potential, and this review panel may not disturb that decision.
We do, however, agree in part with the respondents’ objection concerning the $491 weekly § 31-308a compensation rate implemented by the trial commissioner in his award. The amount of $491 per week corresponds to the maximum weekly compensation rate for temporary partial disability benefits as of August 11, 1992. The parties stipulated in 1995 that the claimant was temporarily partially disabled from January 20, 1994 to August 14, 1994, and was entitled to the maximum rate of $491 per week. The trial commissioner who issued the 1996 award was not called upon to independently determine the claimant’s wage differential, as the respondents’ attorney conceded that the claimant’s diminished earning capacity through August 14, 1994 would have entitled him to the maximum rate. July 28, 1995 Transcript, p. 8-9. In fact, the commissioner decided that the issue of § 31-308a benefits beyond September 13, 1994 should be put on hold because, given his physical absence from the formal hearing, neither party could adequately present evidence or testimony to substantiate or refute the claimant’s continued entitlement to such compensation. Id., 12.
The succeeding trial commissioner should thus not have relied upon the $491 per week figure as the operative wage rate for the claimant’s § 31-308a benefits through 1998. In order to comply with the statute, the claimant’s current earning potential (which, as noted above, may be established by his actual wages) must be compared to the current wages of an employee in a position comparable to that which the claimant held prior to his injury. The trier is not required to discount the claimant’ testimony in that regard, nor is he bound to rely on the respondents’ documentation that a field machinist currently earns an average weekly wage of $1,117.93 (which, we note, is over $250 less per week than the claimant was earning in 1992). He must, however, rely upon evidence that demonstrates the claimant’s actual wage differential over the course of the four years in question. We thus remand this case so that the trier may more accurately determine these amounts, and articulate the basis of his § 31-308a award for the various time periods that it covers.
With respect to the trier’s decision to award temporary total disability benefits from September 3, 1992 to December 8, 1992, as per the previous commissioner’s findings, we discern no error on appeal. A finding is in place that deems the claimant totally disabled during that span of time. June 18, 1996 Award, ¶ 17. This factual item was never challenged by the respondents on appeal. Although the original trial commissioner should have taken the next logical step by awarding temporary total disability benefits for that three-month term (or explaining why, despite her unambiguous finding of disability, she would not do so), her failure to address this matter in her conclusions did not wholly preclude a later commissioner from discovering and rectifying that oversight. It is not as if the original commissioner denied compensation for that time period, and her successor attempted to override her ruling. Instead, no ruling at all was made in the 1996 award. As this commission retains continuing jurisdiction over workers’ compensation claims, the issue technically remained open for a later commissioner to address in an order. This agency, whose purpose is humanitarian in nature, would not be fulfilling its mandate by withholding benefits in this case.
The trial commissioner’s decision is thus affirmed in part, and reversed in part, with instruction that the matter be remanded to the trier for an articulation and recalculation of the claimant’s § 31-308a benefits, as described above.
Commissioners Stephen B. Delaney and Amado J. Vargas concur.
1 The claimant received $250 per week during his periods of total disability, and $175 per week during his periods of partial disability. BACK TO TEXT