State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Rodrigues v. American National Can

CASE NO. 4043 CRB-05-99-04

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 26, 2000

JOSE RODRIGUES

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

AMERICAN NATIONAL CAN

EMPLOYER

and

GALLAGHER BASSETT SERVICES

INSURER

RESPONDENTS-APPELLANTS

CROSS-APPELLEES

APPEARANCES:

The claimant appeared pro se at oral argument, and represented himself throughout the appeal.

The respondents were represented by Richard W. Lynch, Esq., Lynch, Traub, Keefe & Errante, 52 Trumbull Street, P. O. Box 612, New Haven, CT 06506.

These Petitions for Review from the April 30, 1999 Finding and Order of the Commissioner acting for the Seventh District were heard December 3, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant and the respondents have both petitioned for review from the April 30, 1999 Finding and Order of the Commissioner acting for the Seventh District. The claimant seeks certain corrections to the trier’s findings, while the respondents contend that the trier erroneously awarded the claimant temporary total disability benefits and § 31-308(a) benefits, along with temporary partial disability benefits at an incorrect rate. We affirm the trial commissioner’s decision.

The claimant was employed by the respondent American National Can from May 1969 through September 1995, where he most recently served as a quality control inspector. He was first injured at the workplace in 1987, when he was diagnosed with a bilateral inguinal hernia. His pain worsened after surgery, and further repairs of his left inguinal hernia were attempted in 1994 and 1995. The claimant’s last compensable hernia exacerbation occurred while he was tugging on a pallet filled with beverage cans on March 31, 1995. Since then, he has neither returned to work nor secured light duty employment. The 1995 surgery kept him totally disabled through September 15, 1995, at which point in time the respondents filed a Form 36 and ceased paying benefits.

The claimant objected to the approval of the Form 36, alleging that he continues to be totally disabled. He testified that he suffers from constant pain, numbness and swelling in his back and left leg, which has not much improved since his 1995 surgery. The trial commissioner made mention in his findings of a report from Dr. Borruso that released the claimant to light duty work on August 20, 1995, with restrictions against lifting and excessive standing, walking and stair climbing. Another report from Dr. Borruso dated November 1, 1995 remarked that the claimant “has already been released to work,” and stated that the aforementioned restrictions would apply until November 13, 1995. Findings, ¶ 20. The trial commissioner presumably relied on these sources in concluding that the claimant was not temporarily totally disabled from September 15, 1995 to the date of the last formal hearing, but was instead temporarily partially disabled, entitling him to benefits at his base compensation rate.

With respect to the claimant’s work capacity, the claimant testified that his employer initially told him that there was no light duty work available at the plant when he was released for such work in August 1995. The following month, the American National Can factory shut down, and the claimant collected unemployment benefits for six months afterward. Meanwhile, he began looking for suitable work, but was unable to perform job searches consistently because he had no money and could not afford gasoline for his car or alternate transportation. The claimant also testified that he was able to answer a phone, drive, and engage in certain light tasks along with normal everyday activities. The commissioner determined that the claimant had done “his utmost in his efforts to find light duty employment subsequent to September 15, 1995,” and declared him to be entitled to temporary partial disability benefits. Findings, ¶ D. He declined, however, to award the claimant attorney’s fees or interest.1 Both parties have filed petitions for review from that decision.2

The primary claims of error in this appeal are those made by the respondents, who object to the trier’s award of temporary partial disability benefits, the duration of that award, and his failure to reduce the claimant’s compensation rate in light of other income sources. We will begin our analysis of these issues by recounting our standard of review on appeal. When this board inspects a trial commissioner’s decision, we apply a standard of considerable deference to the factual findings. Cabral v. Metropolitan District Employees, 3770 CRB-1-98-2 (May 13, 1999). The fact-finding authority of the trial commissioner entitles him to determine the weight of the evidence presented and the credibility of all testimony offered by lay witnesses and medical professionals, even if such evidence has not been expressly rebutted. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). We may change or reverse the trier’s findings only when they are wholly unsupported by the evidence, or when they fail to include undisputed material facts. Pallotto, supra. This board does not retry the case on appeal, and we will not disturb the legal conclusions that the trier has drawn from the findings unless they result from an incorrect application of the law to the facts, or of an inference illegally or unreasonably drawn from them. Id.; Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

A partially incapacitated claimant is entitled to benefits under § 31-308(a) when he is able to do some work but unable to fully perform his customary work, resulting in a loss of income. Shimko v. Ferro Corp., 40 Conn. App. 409 (1996). The statute is designed to bridge the difference between the claimant’s pre- and post-injury wages, and full weekly compensation may be awarded where a claimant who has been restricted to light duty employment “is ready and willing to perform other work in the same locality [as his usual work] and no other work is available.” The respondents assert that the trier erred as a matter of law by concluding that the claimant qualified for full compensation under § 31-308(a), because there was insufficient evidence to support the finding that the claimant made a sincere effort to find work within his job restrictions.

The claimant testified that, after he was released for light duty work with restrictions, he began searching for suitable employment. He submitted work search forms that spanned a nine-month time period beginning in November 1995, and a two-month period in late 1997. See Claimant’s Exhibit A. These efforts were unsuccessful. He explained that, once the hiring agents of prospective employers became aware of his physical encumbrances, they would invariably turn down his application, as there were no jobs available for someone with so many limitations. Feb. 3, 1998 Transcript, 24-25, 46-53. He got the impression that they were making fun of him because they found it funny that a man in his condition would even bother to inquire about a job. Id., 25, 50. This futility, combined with his inability to afford gas or repairs for his car, discouraged the claimant, and induced him to cease his work searches for considerable stretches of time. Id., 25, 51-53. These job-hunting interruptions did not prevent the trier from being persuaded that the claimant had done his best to find a job, however.

As the respondents acknowledge in their brief, neither § 31-308(a) nor any administrative regulation requires a claimant to perform a work search in order to qualify for benefits. Instead, this practice has been imported from unemployment compensation law as a means of demonstrating the unavailability of light duty employment. Shimko, supra, 414. Other evidentiary means may also be used to illustrate that same condition. Id.; Mikula v. First National Supermarkets, 3754 CRB-3-97-12 (May 11, 1999). It follows, then, that a claimant cannot be automatically penalized for gaps that appear in his work search record, for the law does not specifically mandate the completion of work searches for every week of alleged disability. The trial commissioner may choose not to draw a negative impression from such hiatuses when considered with the totality of circumstances in any given case. That is what happened in the instant matter.

We disagree with the respondents’ contention that various statements made by the claimant conclusively establish that he is not ready and willing to work. The trier was certainly not bound to infer that the claimant was “going out of his way not to get hired” and “emphasizing his injuries” by showing prospective employers a form that detailed his medical restrictions. See Respondents’ Brief, 8. Although the manner in which a claimant presents himself to an employer may greatly increase or decrease his chance of acquiring employment, it is for the trial commissioner to weigh the facts and determine whether the claimant’s performance actually hindered his employability. In this case, it does not appear that the trier drew that conclusion.

As for the claimant’s remarks about not being able to do work because of his pain, the claimant (whose primary language is not English) said, “Before it looks like I could engage in some heavy work and that would not be a problem for me, but when I actually start doing that work—I can’t do it. The pain—I cannot work with pain.” Transcript, 27-28. This does not necessarily translate into a subjective disavowal of all work capacity, and the trier was not bound to conclude from this comment that the claimant was unprepared to accept a light duty assignment. Indeed, the commissioner was not required to rely upon that comment at all. See Pallotto, supra. Therefore, we disagree with the respondents’ allegation that the claimant was not entitled to § 31-308(a) benefits.

After the trier issued his decision, both parties raised issues concerning the amount of the claimant’s compensation rate. The claimant filed a Motion to Submit Evidence to Correct the Compensation Rate, which the trial commissioner granted. Pursuant to his May 25, 1999 order, an informal hearing was to be scheduled to discuss the issue. The respondents, meanwhile, have objected to the trier’s failure to include an offset in the compensation rate for the claimant’s collection of unemployment benefits and rental income. With regard to the former, though this board does not endorse double recovery by the claimant for any period of his disability, the respondents are not entitled to an offset based on the claimant’s collection of unemployment benefits. Instead, the claimant is responsible for reimbursing the Unemployment Compensation Fund pursuant to § 31-258 C.G.S. Foss v. Continental Forest Industries, 5 Conn. Workers’ Comp. Rev. Op. 1, 4, 341 CRD-6-84 (Mar. 9, 1998). We cannot act on that agency’s behalf.

The law controlling the rental income issue, meanwhile, is less settled. The claimant owns a house in Danbury, subject to a mortgage, in which there are two apartments that he leases to tenants. He stated that he receives $850.00 monthly for each rental unit, and manages the property himself, though the only physical chore that he testified to doing personally was vacuuming after a tenant moves out. Transcript, supra, 54. At the time of the formal hearing, both rental units were occupied.

Under § 31-308(a), a partially incapacitated employee “shall be paid a weekly compensation 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 the injured employee before his injury . . . and the amount he is able to earn after the injury . . . .” The words “amount he is able to earn” do not restrict themselves to amounts received from an employer under § 31-275(10), or to wages as defined in § 31-310. Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (Jan. 8, 1999). That phrase suggests a broader scope, and we have held that private business endeavors operated outside the Workers’ Compensation Act may still provide earnings to a claimant within the meaning of § 31-308(a). Id.; see also, Granoff v. New Haven, 12 Conn. Workers’ Comp. Rev. Op. 166, 168, 1555 CRB-3-92-11 (Apr. 29, 1994) (claimant’s active operation of real estate business gave him a § 31-307 earning capacity, and the portions of that income attributable to work activity “as opposed to his status as owner of the business” could be significant regarding claim for temporary partial benefits).

Unlike the word “income,” which is defined by § 31-284b(a) to include “all forms of remuneration to an individual from his employment, including wages;” see Luce v. United Technologies Corp., 247 Conn. 126 (1998); the term “earnings” is not defined in the Workers’ Compensation Act either expressly or by reference to another word. The 5th Edition of Black’s Law Dictionary is informative, however. It defines “earnings” as being broader in meaning than “wages” (which refers to compensation to employees), but still limited to “the gains of a person derived from his services or labor without the aid of capital; money or property gained or merited by labor, service, or the performance of something.” This concept of earnings as “active income” was applied in Granoff, supra, and Heene, supra, and has also been echoed in other jurisdictions. See, e.g., Compensation of Harris v. SAIF Corp., 642 P.2d 1147 (Or. 1982); Connolly v. Workmen’s Comp. Appeal Bd., 301 A.2d 109 (Pa. Cmwlth. 1973).

Although one might also be tempted to resolve this case by relying on the fairly complex theoretical distinction between active and passive income, we believe that the key issue in this matter transcends that classificatory structure, and is in fact much simpler. Rather than attempting to define the amount the claimant is “able to earn” by focusing on the type of income in question, we need only keep in mind that the goal of § 31-308(a) is to compensate the claimant for any temporary reduction in his weekly pay that has been caused by his compensable injury. When another income source is revealed, the factfinder needs to decide whether the income in question reflects a work capacity on the part of the claimant. On review, therefore, we need only determine whether, based on the evidence, the trier was legally required to conclude that the claimant’s management of his rental property bespoke an ability to go back to work.

The evidence here does not indicate that the claimant’s role as “property manager” of his two-unit apartment house entails much day-to-day responsibility. Vacuuming a unit upon the departure of a tenant is an infrequent endeavor, and no other evidence was presented to show that the claimant was putting any regular effort into managing the building. It is also worth noting that the respondents did not show that the amount of income that the claimant was receiving from the rental property increased following his injury. There was thus no basis for the trier to suspect that the claimant was taking advantage of his disabled status by devoting previously unavailable time to actively managing that property. Accordingly, the trier reasonably inferred that the claimant’s ownership and management of his rental property did not reflect an ability to return to work, and declined to include any of the rental income from the apartments in the claimant’s “earnings.” We find no error in that determination.

The respondents’ other argument on appeal is that the trier erred by awarding benefits corresponding to a disability period after July 1, 1996, when the claimant’s “treating physician, Dr. Vijay Patil,” rated him with a permanent partial impairment of the inguinal hypogastric nerve. Brief, 10. First, we note that the trial commissioner did not find Dr. Patil to be a treating physician, in large part because the respondents’ counsel doggedly objected to each of the claimant’s numerous attempts to introduce evidence that would have established such a fact. See February 3, 1998 Transcript, 31-40; June 15, 1998 Transcript, 38-39, 45. Second, whether or not the claimant has reached maximum medical improvement is a question of fact. Dextraze v. Lydall, Inc., 14 Conn. Workers’ Comp. Rev. Op. 52, 1615 CRB-2-92-12 (May 10, 1995). Dr. Patil’s report does not unequivocally state that the claimant would not benefit from further surgery, and even if it did say so, the trier would not be required to adopt its diagnosis. Pallotto, supra. Thus, we find no error concerning the issue of maximum medical improvement.

Two of the issues initially raised by the claimant on appeal (interest and the amount of his compensation rate) have since been addressed by the trial commissioner, and no longer require our review. The remaining issue concerns the establishment of Dr. Patil as the claimant’s treating physician. The claimant objects that certain exhibits (Claimant’s C and D) were not accepted as full exhibits by the trial commissioner. In fact, the record shows that they have been accepted as full exhibits. The claimant also objects that claimant’s Exhibit K, a January 19, 1996 hearing request filed by a former attorney of the claimant should have been interpreted by the commissioner as adequate ground for the claimant to change treating physicians. We cannot say that the trier erred by failing to treat this exhibit as the basis for a finding that the claimant had been validly referred to Dr. Patil, or that retroactive authorization of his treatment was warranted. A reasonable commissioner could have decided that there was insufficient evidence on the matter. See Dudley v. Wadsworth Glen, 3942 CRB-8-98-12 (Oct. 14, 1999) (trier has considerable discretion regarding retroactive authorization of physicians).

The trial commissioner’s decision is hereby affirmed. Insofar as the claimant may not have been paid benefits due pending the outcome of this appeal, interest is awarded pursuant to § 31-301c(b).

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 The trier subsequently granted a portion of the claimant’s first motion to correct that read, “On his finding dated [] 4/30/99, the Commissioner failed to find the undersigned Claimant entitled to be awarded interest in compliance with Sec. 31-296 . . . .” Though the claimant did not set forth proposed language for the corrected finding in that motion, we presume by the granting of this correction that the trial commissioner agreed with the claimant’s assertion that he was entitled to interest pursuant to § 31-296 for payments discontinued by the respondents without the approval of this commission. BACK TO TEXT

2 The claimant has moved to strike the respondents’ Motion to Correct and Reasons for Appeal because neither document was signed by the respondents’ attorney. Although Practice Book § 62-6 requires that counsel of record sign all papers filed with the appellate clerk, there is no serious dispute regarding the authenticity of these documents, nor has the claimant demonstrated prejudice from this omission. Thus, we deny the motion to strike. See § 31-301(e) (procedure in appealing from commissioner’s award is the same as appeal from Superior Court decision, where applicable); P.B. § 62-7 (appellate clerk may refuse papers presented in an incorrect form, but is not required to do so). BACK TO TEXT

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