CASE NO. 4134 CRB-01-99-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 16, 2000
STATE OF CONNECTICUT/DEPARTMENT OF CORRECTIONS
The pro se claimant was not represented at oral argument.
The respondent was represented by Donna Hixon-Smith, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
These Petitions for Review from the October 6, 1999 Finding and Award of the Commissioner acting for the First District were heard June 16, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant and the respondent have both petitioned for review from the October 6, 1999 Finding and Award of the Commissioner acting for the First District. The claimant has failed to state any grounds for objection to the award, while the respondent contends that the trial commissioner applied the incorrect effective date in granting its Forms 36. We dismiss the claimant’s petition for review for failure to prosecute, and sustain the respondent’s appeal with the addendum that this matter be remanded for articulation.
Initially, we dispense with the claimant’s action. Aside from an October 18, 1999 petition for review and a motion for extension of time to file Reasons for Appeal that was submitted ten days later, the claimant has not filed any documentation to substantiate his appeal, such as the required Reasons for Appeal or a brief. See Admin. Reg. § 31-301-2. The claimant’s attorney withdrew his representation on January 13, 2000, with the permission of the trial commissioner. During the succeeding five months, the claimant neither secured replacement counsel nor attempted to prosecute his appeal himself. No explanation has been offered for this period of inaction, and we remain unable to determine the basis for the claimant’s appeal. We accordingly dismiss his petition for review for failure to proceed with due diligence pursuant to Practice Book § 85-1. Whelan v. Humphrey Chemical Co., 3726 CRB-3-97-11 (Dec. 16, 1998); Reynolds v. Atlantic Foods, 3676 CRB-7-97-9 (Oct. 20, 1998).
The respondents, meanwhile, protest the commissioner’s findings as to the claimant’s period of entitlement to benefits. The claimant, a prison guard, sustained a compensable left knee injury on January 21, 1998. His treating physician, Dr. Ciccarelli, opined on February 6, 1998, that the knee was sprained, leaving the claimant with a light-duty work capacity. Twenty days later, Dr. Ciccarelli wrote that the claimant could return to a recuperative post as of March 2, 1998. All of the doctors who subsequently examined the claimant agreed that he was capable of light-duty work to some degree.
The claimant declined to return to the respondent Department of Corrections, where he had briefly attempted to fill a recuperative position that would entitle him to full pay. Findings, ¶ 10. Though not a true light duty position, the post purportedly had “minimal physical demands” and required no inmate contact; thus, the prison regularly offered it to injured or ailing employees. Claimant’s Exhibit F. The claimant also testified that he had been unable to perform carpentry work or lift anything heavy since his injury. However, a surveillance videotape that was shot in late May and early June of 1998 showed the claimant pushing a loaded dolly up an incline, carrying the bowl and tank of a commode, picking up a skill saw, and cutting down wooden doors.
The trier found that the claimant’s engagement in these latter activities reflected negatively upon his credibility, and discounted the remarks he made regarding his professed total inability to work. Findings, ¶ 16; ¶ C. He concluded that the claimant “had a work capacity consistent with the various [Forms 36] at issue in this case.” Id., ¶ E. He then declared the Forms 36 effective as of November 12, 1998 (the date of a previous informal hearing at which another commissioner had approved said forms effective immediately but only prospectively), stating that the respondent “has either paid or should have paid the Claimant disability benefits through November 12, 1998. . . . The nature of these benefits paid would appear to be that of Temporary Partial benefits at the base compensation rate.” Id., ¶ G. The trier added that the claimant had a light-duty status subsequent to November 12, 1998, with no entitlement to further benefits for temporary partial disability. The respondent requested that the findings be corrected by adding paragraphs detailing, inter alia, the claimant’s failure to establish a diminished earning capacity as required by § 31-308(a), and his ability to work as of February 6, 1998. The trial commissioner denied virtually all of those corrections.1 We are now asked to review these rulings on appeal.
Disputed facts that arise in a workers’ compensation case are to be considered and resolved by the trial commissioner, and may not be retried upon review. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The credibility of evidence, such as a witness’ remarks or a doctor’s report, is a prime example of such an issue. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The work capacity of a claimant, which is usually established by reliance on such testimonial and medical evidence, is also a matter that the trier of fact must determine by canvassing the record and choosing among the inferences that a reasonable person could draw from it. Ryba v. West-Con, 3196 CRB-2-95-10 (Feb. 27, 1997). Such findings are made after a formal hearing, where evidence can be entered into the record. In cases that concern the filing of a Form 36, we have held that § 31-296 C.G.S. requires a speedy emergency informal hearing to be held soon after a claimant files an objection to the discontinuance of his benefits. Stryczek v. State of Connecticut/ Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 1765 CRB-2-93-6 (May 4, 1995). Either party may subsequently challenge the resulting ruling at a full de novo formal hearing, which allows for the discussion of broader issues regarding disability, and requires no deference to the preliminary decision on the Form 36. Ryba, supra.
The trial commissioner took notice of the following Forms 36 that were submitted by the respondent: a form filed on March 9, 1998 that sought to discontinue temporary total disability benefits (Respondent’s Exhibit 2); a form filed on March 27, 1998 that sought to discontinue temporary partial disability benefits (Claimant’s Exhibit B); a form filed on March 25, 1998 that also sought to stop total disability benefits (Respondent’s Exhibit 3); and forms 36 filed on June 3, 1998, June 4, 1998, and January 7, 1999 (each demanding that the claimant provide job search records in order to remain eligible for § 31-308(a) benefits). He concluded in ¶ E of his award that, based on the evidence, the state had proven that the claimant had a work capacity “consistent with the various [Forms 36] at issue in this case.” We have explained that, in cases where a required Form 36 has been granted (i.e., where a claimant has unsuccessfully alleged continuing incapacity), benefits should be halted or reduced effective on its filing date, unless extenuating circumstances dictate that a later date is more appropriate. Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (Feb. 5, 1997); Stefenski v. C. Raimondo & Sons, 3081 CRB-2-95-6 (Jan. 8, 1997); Stryczek, supra, 34. Here, the commissioner stated that, for “purposes of judicial economy and with an attempt to bring to a close the seemingly endless litigation in this case,” he was using his discretion to assign November 12, 1998 as the approval date of the two Forms 36 filed on March 9, 1998 and March 27, 1998. Findings, ¶¶ H, I. Though we fully understand why, after seven formal hearings, the trier sought to craft a solution that these two cantankerous parties could tolerate, a commissioner’s decision to extend the approval date of a Form 36 beyond its filing date must be rooted in the evidence itself. See Stefenski, supra.
In order to be entitled to temporary partial disability benefits at his base compensation rate, the claimant would have had to demonstrate under § 31-308(a) that he was ready and willing to perform light duty work, but no such work was available in his locality. There is no indication in the findings that he met this requirement. Apparently, for a day or two in early March 1998, the claimant tried to cover the “recuperative” position that his employer had set aside for him, but stopped working because he felt he could not handle the job. Findings, ¶ 6. As noted above, this position entailed no diminution in salary. Though Dr. Ciccarelli was sympathetic to the claimant’s assertion that the job required too much standing, and directed that the claimant be limited to a more sedentary position; Respondent’s Exhibits 1, 3; Dr. Kimmel stated on March 17, 1998 that he would prefer that the claimant accept the recuperative position, perhaps in a way that would not aggravate his knee. Exhibit 1, supra. The trier cited Dr. Kimmel’s opinion in ¶ 9 of his findings, and it is Dr. Kimmel’s report that was attached to the March 27, 1998 Form 36. This suggests that the trier deemed the claimant capable of returning to the respondent’s employ at this point. See also Findings, ¶¶ C, E. However, this is not irrefutably clear from the findings, especially in light of the trier’s denial of ¶¶ M and O of the respondent’s Motion to Correct.2
Moreover, even if we assume that the trier concurred with the opinions of Dr. Ciccarelli and Dr. Messinger, who both said that the claimant should only undertake wholly sedentary work; Respondent’s Exhibits 1, 3; Claimant’s Exhibit M; December 8, 1998 Transcript, p. 34; there are no findings, and seemingly little or no evidence, that would establish an absence of available sedentary work during the claimant’s period of partial incapacity. Before the claimant can collect compensation, he must establish that he meets the criteria of § 31-308(a). This may be done by submitting work search forms, or through some other evidentiary means. Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996). Unfortunately, the facts found by the commissioner were insufficient to resolve that subordinate issue. They fail to draw a conclusion either way. As this board is not empowered to draw its own conclusions from the record, and it is unclear that the trier correctly applied the statutory criteria, we must remand this case to him for an articulation of his legal and evidentiary bases for awarding the claimant § 31-308(a) benefits through November 12, 1998. Shimko, supra, 415; Corarito v. United Home Care, 3660 CRB-4-97-8 (Dec. 16, 1998) (case remanded where CRB could not discern “extenuating circumstances” justifying later approval date of Form 36).
The trial commissioner’s decision is hereby reversed, and this case is remanded to the commissioner for articulation as stated above.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.
1 One correction was granted, which fixed a typographical error in ¶ C of the findings by removing a double negative. BACK TO TEXT
2 Paragraph M sought to add to the Finding and Award the phrase, “claimant had the physical capability to work at a recuperative post position from March 2, 1998 to March 10, 1998, and on and after March 17, 1998. The claimant has not established by reliable medical evidence that he was restricted to light duty work after March 17, 1998.” Paragraph O of the Motion to Correct requested the inclusion of a similar statement, also specifying that the claimant therefore had no wage differential upon which temporary partial disability benefits could be based. BACK TO TEXT