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Baldino v. Charles Corcoran d/b/a Corcoran & Son Landscaping & Paving

CASE NO. 4275 CRB-4-00-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 23, 2001

CHARLES BALDINO

CLAIMANT-APPELLANT

v.

CHARLES CORCORAN d/b/a CORCORAN & SON LANDSCAPING & PAVING

EMPLOYER

and

SHELBY INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Daniel Skuret, Esq., Law Offices of Daniel Skuret, 215 Division Street, P.O. Box 158, Ansonia, CT 06401-0158.

The respondents were represented by Andrew Hern, Esq., Gordon, Muir & Foley, 10 Columbus Boulevard, Hartford, CT 06106.

This Petition for Review from the July 26, 2000 Finding and Award of the Commissioner acting for the Fourth District was heard March 30, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the July 26, 2000 Finding and Award of the trial commissioner acting for the Fourth District. In that decision the trial commissioner denied the claimant temporary partial disability benefits under § 31-308(a) for the period from March 16, 1999 to December 10, 1999. In support of his appeal, the claimant contends that the respondents agreed to pay temporary partial disability benefits and that said agreement was memorialized in a superior court transcript. Additionally, the claimant argues that the trial commissioner improperly denied the admission of the court transcript into evidence. We find no error.

The issue before the trial commissioner was the claimant’s request for temporary partial disability benefits from March 16, 1999 to December 10, 1999. The trial commissioner found the following relevant facts. On June 7, 1997, the claimant sustained bilateral carpal tunnel syndrome and injury to his right elbow while in the course of his employment with the respondent employer. The claimant was born in 1959, and quit high school in 1975. He had a “very spotty” employment history. Finding ¶ 7. He was incarcerated from 1975 through 1978, and worked as a mason’s assistant from 1978 through 1982 or 1983. Subsequently, the claimant worked for four months as a carpenter’s helper, and then did not work again until 1985 when he returned to the masonry job. The claimant was again incarcerated from 1987 to 1988. The claimant did not work or attend school from 1988 through 1995.

In 1995, the claimant began work with the respondent employer as a laborer. He was then incarcerated a third time in January of 1996, and upon his release he returned to work with the respondent employer. After his injury of June 7, 1997, the claimant did not work, although he was released to light duty work with a twenty-pound lifting restriction by his orthopedist, Dr. Nolan. The claimant requested § 31-308(a) benefits, which the respondents contested on the ground that the claimant did not make sufficient job searches. On June 25, 1999, the respondents filed a Form 36 contesting any entitlement to § 31-308(a) benefits. However, the trial commissioner found that as no order or agreement to pay such benefits existed, and no benefits were being paid at that time, the Form 36 was not necessary. The trial commissioner took administrative notice that another commissioner had declined to rule on the Form 36 at a previous informal hearing.

At the formal hearing, the claimant testified regarding his job searches. The claimant did not target employers which were in the process of hiring. The claimant visited various business establishments, and did not ask to speak to the owners of the businesses, but merely spoke to the first person he encountered. He did not provide his address to the employers, and the claimant does not have a telephone. The claimant also testified that he did not complete all of the job search forms himself; rather, his younger brother completed some of the forms on the claimant’s behalf. The trial commissioner concluded that “[e]ven though the Claimant submitted job search forms for some employers, his testimony regarding the completion of these forms and his job search was not believable.” Finding ¶ 32. The trial commissioner thus concluded that the claimant was not willing and ready to perform work during the period he was temporarily partially disabled.

Section 31-308(a) provides in part:

If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, the injured 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… except that when (1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available, the employee shall be paid his full weekly compensation....”
Section 31-308(a) (emphasis added).

Whether a claimant has satisfied the statutory criteria for § 31-308(a) wage differential benefits is a factual determination for the trial commissioner. Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995). Although our statutes do not require a claimant to perform a work search, it has been accepted as one evidentiary basis to demonstrate willingness to work and the availability of suitable light duty employment. Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996); Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 1111 CRD-4-90-9 (Jan. 28, 1992).

The power and duty of determining the facts rests on the trial commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the trial commissioner found that the claimant did not present credible testimony regarding his job search efforts. We thus find no error regarding the trial commissioner’s denial of § 31-308(a) benefits for the period from March 16, 1999 to December 10, 1999. We note that the claimant contends in his appeal that the trial commissioner erred by reviewing the period from March 16, 1999 to December 10, 1999, because the claimant argues that the respondents did not contest this period of benefits. Specifically, the claimant argues that the respondents only introduced evidence regarding the claimant’s job searches from May 18, 1999 through June 11, 1999. We find no merit to this argument, as it is the claimant’s burden to prove, and not the respondents’ burden to disprove, the claimant’s eligibility for § 31-308(a) benefits. Christman v. State/Dept. of Correction, 4134 CRB-1-99-10 (Oct. 16, 2000).

We will next consider the claimant’s argument that the respondents had agreed to pay § 31-308(a) benefits as evidenced by a superior court transcript, and that the respondents were thus required to file a Form 36 prior to discontinuing such benefits. The trial commissioner specifically found that there was neither an order nor an agreement to pay § 31-308(a) benefits. Section 31-296 addresses voluntary agreements, and requires that a Form 36 be filed before “discontinuing or reducing payment on account of total or partial incapacity under any such agreement….” Section 31-300 addresses a trial commissioner’s award of benefits, and requires that a Form 36 be filed before an employer or insurer “shall discontinue or reduce payment on account of total or partial incapacity under any such award, if it is claimed by or on behalf of the injured person that his incapacity still continues.…” In the instant case, the trial commissioner found that the Form 36 filed by the respondents in June of 1999 was not necessary because there had been neither an order nor an agreement to make payments to the claimant.

The trial commissioner specifically found that the court transcript offered by the claimant (Claimant’s Exh. for I.D. only) did not establish an agreement on the part of the respondents to pay temporary partial disability benefits. The trial commissioner asked the claimant’s counsel to point to the specific page of the court transcript where it is stated that the respondents agreed to pay temporary partial disability benefits. March 8, 2000 Transcript, p. 39. Counsel directed the trial commissioner to review several sections of the court transcript, and the trial commissioner reviewed those sections. Id., 39-43. Finally, the trial commissioner stated as follows:

COMMISSIONER: ….I’m not seeing a stipulation. You continue to characterize it as such, and I have the transcript, but I do not see it as such. There’s no stipulation by Attorney Hern that he will pay these benefits. There’s a stipulation that he will follow, of course as he has to, the Court Order in regard to what Mr. Baldino would be owed.
Id., 43.

Accordingly, the trial commissioner sustained the respondents’ objection to the admission of the court transcript as a full exhibit.

We have repeatedly explained that a trial commissioner is not bound by the ordinary common law or statutory rules of evidence at a hearing under § 31-298. Rather, he is instructed to “make inquiry . . . in a manner that is best calculated to ascertain the substantial rights of the parties . . . .” Sec. 31-298. The trier “has broad discretion to determine the admissibility of evidence under that statute.” Tanzi v. New Britain, 3420 CRB-6-96-9 (April 28, 1998), citing Leary v. Stamford, 3280 CRB-7-96-3 (Sept. 17, 1997); York v. General Dynamics/Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 166, 170-71, 1770 CRB-2-93-6 (March 9, 1995). We cannot reverse a commissioner’s evidentiary ruling absent an abuse of that discretion. Tanzi, supra, citing York, supra, 171. In the instant case, we agree with the trial commissioner’s determination that the court transcript offered by the claimant did not establish an agreement by the respondents to pay temporary partial disability benefits. We thus find no abuse of discretion in her ruling denying its entry as a full exhibit.

We conclude that in the case at hand the trial commissioner’s denial of the claimant’s request for benefits under § 31-308(a) is a factual determination which is fully supported by the record, including the claimant’s failure to adequately search for work.

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

Page URL: http://wcc.state.ct.us/crb/2001/4275crb.htm

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