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German v. Burndy Corporation

CASE NO. 4007 CRB-05-99-03

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 4, 2000

JAMES GERMAN

CLAIMANT-APPELLANT

v.

BURNDY CORPORATION

EMPLOYER

and

RISK ENTERPRISE MANAGEMENT

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by John P. Sponheimer, Esq., Hoyle & Sponheimer, P.O. Box 151, 277 Wakelee Avenue, Ansonia, CT 06401.

The respondents were represented by James Moran, Esq. Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.

This Petition for Review from the March 12, 1999 Finding of the Commissioner acting for the Fifth District was heard March 10, 2000 before a Compensation Review Board panel consisting of Commissioner Robin L. Wilson and Commissioners Leonard S. Paoletta and Stephen B. Delaney.

OPINION

ROBIN L. WILSON, COMMISSIONER. The claimant has petitioned for review from the March 12, 1999 Finding of the Commissioner acting for the Fifth District. In that decision the trial commissioner found that the claimant had received 137 weeks of discretionary benefits under § 31-308a, and denied the claimant’s request for further benefits under that section. In support of his appeal, the claimant argues that because the nature of the claimant’s injury had not changed, the trier erred as a matter of law in denying further § 31-308a benefits. The claimant further argues that the trier’s conclusion that the claimant failed to exercise diligence in seeking employment is immaterial because the findings do not indicate that suitable work was available. We find no error.

We will first address the respondents’ Motion to Dismiss the claimant’s appeal for failure to file timely reasons of appeal or a motion to correct. Section 31-301-2 of the Administrative Regulations states that within ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal. In the instant case, the claimant filed a timely notice of appeal on March 17, 1999, and filed his Reasons of Appeal on March 22, 1999, which was timely. We agree with the claimant’s contention that a Motion to Correct is not necessary where the argument on appeal involves a legal argument, and the factual findings are not disputed. We thus deny the respondents’ Motion to Dismiss.

We now turn to the merits of the claimant’s appeal. The trial commissioner found the following relevant facts. The claimant sustained an injury to his back while employed by the respondent employer on January 20, 1992, which resulted in a fifteen percent permanent partial disability of the back. The claimant received compensation for said permanent partial disability. The claimant then requested § 31-308a benefits, which he received for approximately 137 weeks, from September 13, 1994 through April 28, 1997. Following his injury on January 20, 1992, the claimant returned to light duty work with the respondent employer until he was terminated in May of 1993. The claimant testified that he enrolled in Vocational Rehabilitation and attended the Porter and Chester Institute from January of 1994 to July 1995, graduating with a degree in mechanical engineering. The claimant further testified that when he had been employed by the respondent employer, he assumed the majority of the foreman’s responsibilities, including production planning, hiring, firing, job assignments, and ordering.

A private investigator, hired by the respondents, conducted surveillance of the claimant on five days in April of 1997. The surveillance revealed that the claimant went to Daddio’s Auto Salvage in Ansonia, Connecticut, where he appeared to be inspecting the parts of an automobile and recording notes on a clipboard, in addition to other activities. (Findings ¶ 17-20). The claimant testified that he frequently visited Daddio’s on a daily or every other day basis, and that he spent a considerable amount of time there, just “hanging around” but that he was not employed there. (Finding ¶ 21-22). The claimant testified that he normally conducted his job searches on one day each week, usually Wednesday or Thursday.

The trial commissioner denied the claimant’s request for further § 31-308a benefits. The trial commissioner found that the claimant’s training and experience, particularly his management related experience, provided the claimant with many areas of possible employment. Furthermore, the trial commissioner found that the claimant’s ability to drive himself to Daddio’s on a regular basis indicated his ability to maintain a regular work schedule. In addition, the trial commissioner found that the claimant’s decision to search for work on only one day per week, while regularly visiting Daddio’s several times per week, indicates that the claimant had not devoted the appropriate dedication and effort necessary to secure employment.

The trial commissioner has discretion to determine the duration of an award under § 31-308a1 based upon factors such as the employee’s age, training, education, marketability, and the severity of his injury. Lagueux v. Veilleux d/b/a Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 180, 876 CRD-6-89-6 (Aug. 13, 1991). 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 commissioner’s conclusion regarding eligibility for benefits pursuant to § 31-308a is a factual determination which is considered discretionary. Serletti v. New Haven, 15 Conn. Workers’ Comp. Rev. Op. 111, 2199-CRB-3-94-11 (Jan. 11, 1996). Therefore, the question before this board is whether the commissioner abused his discretion in limiting the duration of the claimant’s award. Id., see also Richmond v. General Dynamics, 13 Conn. Workers’ Comp. Rev. Op. 345, 1825 CRB-2-93-8 (April 27, 1995).

In support of his appeal, claimant argues that the trier erred in denying § 31-308a benefits without finding that the claimant’s injury had changed. The claimant further argues that the trier erred in denying § 31-308a benefits without finding that suitable work was available for the claimant. We find no merit to these arguments. Rather, § 31-308a benefits are discretionary in nature. Here, the trial commissioner properly considered the statutory factors, including the employee’s training, education, marketability, and the severity of his injury. In the instant case, the claimant sustained a fifteen percent permanent partial disability of the back, and was able to perform numerous activities. The trial commissioner found that the claimant’s training, including on-the-job training, qualified the claimant for numerous employment possibilities. We thus find no abuse of discretion in the trial commissioner’s denial of further § 31-308a benefits.

The trial commissioner’s decision is affirmed.

Commissioners Leonard S. Paoletta concur and Stephen B. Delaney.

1 Section 31-308a (Rev. to 1991) provides that “the commissioner . . . may award additional compensation benefits for such partial permanent disability equal to two-thirds [now seventy-five percent] 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 the employee’s age. . . . The duration of such additional compensation shall be determined upon a similar basis by the commissioner.” BACK TO TEXT

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