CASE NO. 4590 CRB-1-02-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 20, 2003
MASS MUTUAL LIFE INSURANCE CO.
ST. PAUL FIRE & MARINE INSURANCE CO.
The claimant was represented by Frank V. Costello, Esq., McCarthy, Schuman & Coombes, 107 Oak Street, Hartford, CT 06106.
The respondents were represented by Dominick C. Statile, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
These Petitions for Review from the November 1, 2002 Finding and Award of the Commissioner acting for the First District were heard May 30, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.
JOHN A. MASTROPIETRO, CHAIRMAN. Both parties to this matter have petitioned for review from the November 1, 2002 Finding and Award of the Commissioner acting for the First District. The claimant challenges the trier’s denial of two paragraphs in her Motion to Correct, his denial of her request for total disability benefits, and his omission of a finding of unreasonable contest and an award of attorney’s fees and penalties. The respondents contest the trier’s order that they assume responsibility for the claimant’s cubital tunnel syndrome, her award of § 31-308(a) benefits, the trier’s denial of two Forms 36 that the respondents filed, and the trier’s authorization of payment for medical bills by an out-of-state physician. We find no error on either appeal, and affirm the decision of the trial commissioner.
The relevant facts of this case are as follows. The claimant, who since 1989 had worked as a mail clerk for the respondent Mass Mutual Life Insurance, filed a Form 30C on January 2, 1999, alleging a compensable repetitive trauma injury in the form of bilateral carpal tunnel syndrome. The carpal tunnel claim was accepted by the respondents. On March 24, 2000, the claimant was rated by Dr. Mara, her treating orthopedic physician, with a 2.5% permanent partial disability of each hand as a result of her bilateral carpal tunnel condition. However, simultaneous with that permanency rating (for which the respondents paid benefits under § 31-308(b) C.G.S.), Dr. Mara diagnosed the claimant with cubital tunnel syndrome, which he opined was directly related to her employment. See Claimant’s Exhibit B. Surgery was later performed on both hands, and Dr. Mara released the claimant to full duty.
The claimant fared poorly upon her return to work, as she had difficulty moving her mail cart and lifting heavy objects. Her initial lifting restriction of 25 pounds was progressively reduced in five-pound increments to 10 pounds, and Dr. Mara assigned her a sedentary work capacity with no repetitive use of the hands. The respondents were unable to accommodate the claimant’s work restrictions, and she ceased working for Mass Mutual after April 28, 2000. She has since been unable to find alternative employment, despite diligent efforts to obtain a position. In addition to her injury-related restrictions, the claimant is also attempting to overcome deafness in her left ear, and a measured IQ that falls between “below average” and “borderline.” Findings, ¶ 3.
The claimant applied for retraining through this Commission’s Division of Workers’ Rehabilitation, and was sent to the Greater Hartford Easter Seals Rehabilitation Center for a vocational evaluation. The evaluation indicated that, with accommodations, she could tolerate a four-hour workday—a prospect the trial commissioner found questionable. James Cohen, a vocational expert who testified on the claimant’s behalf, stated that she was not employable, in significant part because of the effects of her hand and arm injuries. Kerry Quint, a vocational expert who testified at the respondents’ behest, concluded that the claimant was employable.
The claimant filed a Form 30C on October 13, 2000 alleging bilateral cubital tunnel syndrome with an injury date of April 21, 2000. The respondents contested the compensability of this claim, even though Dr. Watson, their orthopedic medical examiner, opined that the claimant’s cubital tunnel syndrome was secondary to her work-related carpal tunnel syndrome. The respondents also filed Forms 36 on March 12, 2001 and June 7, 2001. The first sought to discontinue benefits on the ground that the claimant was capable of full duty work, while the second sought to discontinue benefits on the ground that the claimant had a sedentary work capacity. Both Forms 36 were denied.
After considering the evidence and making the above subordinate findings, the trial commissioner found that the claimant’s cubital tunnel syndrome arose out of and in the course of her employment, and instructed the respondents to pay for reasonable medical treatment related to that condition. The trier found the most credible medical opinion to be that of Dr. Mara, and ruled that the claimant was not totally disabled. The trier also found that she had not reached maximum improvement following her cubital tunnel syndrome, and awarded her § 31-308(a) benefits. The earlier denial of the Forms 36 was confirmed. Mass Mutual and its workers’ compensation insurer were also ordered to accept responsibility for the medical bills and reports of Dr. Simmons, a Massachusetts orthopedic physician who saw the claimant on the advice of her sister. The respondents were spared liability for attorney’s fees under § 31-300 C.G.S., the trier finding that there was no unreasonable contest of the cubital tunnel claim. Both parties moved to correct the Finding and Award, and both filed appeals to this board as well.
We will first turn our attention to the issues raised by the claimant. In her Motion to Correct, the claimant included two proposed changes that were denied by the trial commissioner. The first proposal stated that respondents’ denial of the claimant’s cubital tunnel syndrome was without an offer of supporting evidence, while the second proposal stated that the respondents had never accepted the compensability of the claimant’s cubital tunnel syndrome.
With respect to the second proposed finding, we reject out of hand the notion that the trial commissioner mistakenly believed that the respondents had previously accepted liability for the cubital tunnel injury. The compensability of this injury has been a central issue in this case all along, and was expressly mentioned by the trier as a disputed issue. Findings (Issues), ¶ 1. The claimant would have us hold that the trier inferred otherwise based on ¶ G of his conclusions, which states, “The claimant is not entitled to attorney’s fees . . . since the Respondents were not unreasonable concerning their acceptance of the initial diagnosis of cubital tunnel syndrome, since they had accepted the diagnosis of carpal tunnel syndrome.”
Given the context and the trier’s findings in ¶¶ A and B, it would be unrealistic to read this finding as a sign of the trier’s belief that the respondents had previously accepted the compensability of the cubital tunnel syndrome. The portion of the sentence that reads “the Respondents were not unreasonable concerning their acceptance of the initial diagnosis of cubital tunnel syndrome” is meant to convey that the respondents did not act unreasonably concerning the issue of whether or not to accept the initial diagnosis of cubital tunnel syndrome. At most, this ambiguity of wording amounts to a scrivener’s error. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002)(scriveners errors normally should be overlooked on review), cert. denied, 262 Conn. 933 (2003). The trier was attempting to explain that the respondents’ ready acceptance of the claimant’s carpal tunnel syndrome was evidence that they had not acted in bad faith in contesting the cubital tunnel syndrome. As the trier of fact, it was within his prerogative to draw such an inference based on the respondents’ pattern of conduct in defending the instant claims for repetitive trauma. See Regan v. Torrington, 4456 CRB-5-01-11 (Oct. 25, 2002)(trier labeled insurer’s attitude as “intransigent” based on its pattern of defense).
When we turn to the first proposed finding—the claimant’s assertion that the respondents offered no evidence in support of their denial of the cubital tunnel syndrome claim—our discussion segues into the larger question of whether the trier erred by failing to find unreasonable contest. At this time, we note that, while the claimant is contending that the respondents’ defense is so unfounded as to be unreasonable, the respondents’ brief argues that there is so little evidence to support compensability that the award must be reversed as a matter of law.
Our review of the file shows that the respondents initially contested this claim in October 2000 on the ground that there was no medical evidence to support a causal connection between the claimant’s cubital tunnel syndrome and her workplace. Following the claimant’s carpal tunnel surgery in May and June 1999, Dr. Mara reported that she was healing well. Claimant’s Exhibit B. In March of 2000, mild cubital tunnel syndrome was first observed, though there was no indication for surgery at that point. On April 27, 2000, Dr. Mara opined that the claimant’s symptoms had progressed to a point at which surgical decompression was advisable. However, her symptoms had “largely resolved” when she saw Dr. Mara on June 5, 2000. He opined that, given her improvement, “it may be possible to avoid cubital tunnel surgery by placing her on a light-duty status, which may need to be permanent.” Id.
On July 10, 2000, it was noted that the claimant had been out of work, as no modified duty was available at Mass Mutual. The claimant was also experiencing the re-emergence of mild cubital tunnel symptoms. In his May 3, 2002 deposition, Dr. Mara remarked that an abatement of symptoms followed by a recurrence is normally due to the performance of some “offending action.” Respondent’s Exhibit 7, p. 31. This flare-up could not have been directly caused by work exposure, for the claimant had been away from her job for some time. Id., pp. 31-34. On September 11, 2000, Dr. Mara noted that the claimant seemed comfortable when not working, but complained that her symptoms would recur immediately upon going back to work. Claimant’s Exhibit B. He recommended that she be retrained to perform a sedentary occupation, and advised holding off on surgery for the time being. As noted above, the claimant’s Form 30C was filed on October 13, 2000, several months after her last date of employment. The respondents Form 43 followed shortly thereafter.
On November 7, 2000, Dr. Mara prepared a brief letter clarifying that the claimant’s bilateral cubital tunnel syndrome was directly related to her work environment. During and after that time, her cubital tunnel symptoms continued to manifest. Dr. Mara again began recommending surgery, but the claimant was reluctant to comply. The doctor stated on July 31, 2001, that there was nothing short of surgery that he could offer her to alleviate the severe pain she was feeling in her fingers. In his deposition, Dr. Mara reiterated his belief that “in the absence of any other predisposing factors or medical illnesses, [the claimant’s cubital tunnel syndrome] is in all likelihood related to her work at Mass Mutual.” Respondents’ Exhibit 7, p. 42. With regard to the abatement and recurrence of symptoms that occurred in the early summer of 2000, he explained that the claimant’s work precipitated the development of the condition, which was then subject to provocation and irritation by many other activities. Id.
Meanwhile, the respondents’ examiner, Dr. Watson, first saw the claimant on February 28, 2001. He made no express mention of the claimant’s cubital tunnel syndrome, though he did note “minimal ulna nerve sensitivity at the medial epicondylar grooves.”1 Dr. Watson put forth the opinion that the claimant was capable of full duty work, and did not think she needed further medical treatment. Claimant’s Exhibit F. In a clarificatory letter dated April 27, 2001, he explained that she had minimal cubital tunnel syndrome secondary to her work-related carpal tunnel syndrome, insofar as there was mild ulnar sensitivity.
As the factfinder who has presided over a contested case, the trial commissioner is in the best position to decide whether a respondent has reasonably conducted its defense, and possesses a considerable amount of discretion in making such a finding. Prescott v. Community Health Center, Inc., 4426 CRB-8-01-8 (Aug. 23, 2002). On appeal from a determination regarding unreasonable contest, the scope of this board’s review is usually quite limited. Regan, supra. Here, we hold that the commissioner had a sufficient basis on which to find that the respondents’ contest of this claim was reasonable. At the time the respondents filed their Form 43, the medical reports of Dr. Mara left open the possibility that the immediately preceding flare-up of cubital tunnel symptoms might be due to some other stimulus besides work. Subsequently, the respondents’ examiner wrote a report that downplayed the importance or effect of any cubital tunnel syndrome. Given this evidence, this board cannot say on review that the trial commissioner abused his discretion by failing to make a finding of unreasonable contest. Prescott, supra.
At the same time, we cannot state on review that there was insufficient evidence upon which to find the claimant’s cubital tunnel syndrome compensable. The trial commissioner specifically stated that he found Dr. Mara’s opinion to be the most credible, as is his province as factfinder. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). As an appeal board, we cannot substitute our own assessment of the evidence for the credibility determinations of the trial commissioner. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Dr. Mara’s testimony and reports state quite definitively that, in his opinion, the claimant suffers from cubital tunnel syndrome as a result of her repetitively performing certain job duties at the respondent Mass Mutual. This evidence strongly supports the proposition that the claimant’s work activities substantially contributed to her diagnosis of cubital tunnel syndrome. The finding of compensability must therefore be affirmed.
The claimant’s other allegation of error concerns the trier’s denial of total disability benefits pursuant to § 31-307(a). She asserts that her physical condition due to her injury is such that she is unable to find employment with the exercise of reasonable diligence, which would satisfy a standard of total disability first enunciated in Osterlund v. State, 135 Conn. 498, 506-507 (1949). She rests her argument on the commissioner’s finding that, despite extremely diligent efforts to find alternative employment, no job offers have been tendered; Findings, ¶ 15; and on the opinion of Dr. Cohen, a vocational rehabilitation specialist. Dr. Cohen testified that, given her lack of transferable skills, her physical limitations due to her compensable injuries, her relative lack of competitiveness compared to other workers in the current job market, and the limited number of positions available that would conform to the claimant’s needs and abilities, the claimant is unemployable as a practical matter despite being highly motivated to find work. December 19, 2001 Transcript, pp. 93-102.
As the trial commissioner noted, a conflicting opinion was reached by Ms. Quint, a vocational rehabilitation specialist whom the respondents retained. She concluded that the claimant was employable despite her prior lack of success in looking for work, and that there were positions in the labor marketplace that she could perform, such as the part-time jobs of school crossing guard, companion, and assistant teacher. Transcript, pp. 205-11. When the Osterlund standard of disability (with which the witness was familiar) was raised by the commissioner, Quint testified that the claimant’s physical restrictions still allow her to perform some work, even taking into account her cognitive and educational levels. Id., p. 215-16.
Whether or not a claimant is totally disabled pursuant to § 31-307(a) is a question of fact for the trial commissioner, and is dependent on a claimant’s ability to meet her burden of proof. Figueiredo v. Barridon Corp., 4442 CRB-1-01-9 (Aug. 16, 2002); D’Amico v. State/Dept. of Correction, 4287 CRB-5-00-9 (Aug. 3, 2001), aff’d, 73 Conn. App. 718 (2002), cert. denied, 262 Conn. 933 (2003). Pursuant to Osterlund, supra, a claimant who is theoretically capable of some work may establish total disability by demonstrating that her labor is unmarketable, making a reasonably diligent search for work fruitless. Osterlund, supra; Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002). However, such a claim is not automatically established by offering evidence that is capable of satisfying that test. Figueiredo, supra. The trial commissioner remains the arbiter of credibility, and has the discretion to decide whether the evidence and testimony supporting total disability are reliable. Duddy, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001).
Here, the trial commissioner determined that the claimant had not reached the Osterlund benchmark of practical total disability, despite the testimony of Dr. Cohen and the many unsuccessful job searches she had performed to date. Whether the trier was relying to some degree on the testimony of Ms. Quint in making that determination, or whether he was of the opinion that Dr. Cohen’s analysis was overly pessimistic, we cannot say. The trier was not required under Admin. Reg. § 31-301-3 to explain the basis for his credibility determinations. It is enough to note on review that there is evidence in the record to support a finding that the claimant retains a meaningful work capacity. Thus, the claimant’s appeal must be denied.
The respondents, meanwhile, go beyond arguing that the claimant was not totally disabled under § 31-307; they also argue that she should not have been awarded § 31-308(a)2 temporary partial disability benefits. They contend that she has reached maximum medical improvement for her carpal tunnel and cubital tunnel conditions, and moreover, that she did not demonstrate that her cubital tunnel symptoms—as opposed to the carpal tunnel symptoms—substantially caused her current diminished earning capacity. The respondents also raise the separate but related point that the trier erred by affirming the earlier denial of their two Forms 36, as the claimant allegedly had a full duty work capacity as of the March 12, 2001 filing (based on the attached opinion of Dr. Watson), and a sedentary work capacity that mandated a need for the claimant to do work searches as of the June 7, 2001 filing (based on the opinion of Dr. Mara).
The trial commissioner concluded that the claimant had not reached maximum medical improvement from the cubital tunnel condition, however. Findings, ¶ E. The reports of Dr. Mara—which the trier credited above those of the other doctors—are consistent with that finding, as they describe a still-degenerating condition that can only be remedied through surgery, in the opinion of the doctor. As noted above, on September 11, 2000, Dr. Mara had stated that “the most optimum approach to this would be to retrain her in a more sedentary and less demanding occupation,” as the claimant was only being bothered by her symptoms when working. Claimant’s Exhibit B. At the time, Dr. Mara did not think further treatment would be required, including surgery. The next report, dated April 9, 2001, indicates that he was suggesting surgical decompression, as the claimant was experiencing paresthesia in her ring and pinky fingers with any type of repetitive use. The claimant was reluctant to undergo surgery at that point. On May 18, 2001, Dr. Mara wrote a letter clarifying that she needed to be doing sedentary work that did not involve highly repetitive use of her hands. This light duty restriction is clearly a reaction to the symptoms of cubital tunnel syndrome that had been bothering the claimant, rather than her previously resolved carpal tunnel symptoms. Thus, the situation was one in which an award of § 31-308(a) benefits was an option.
It was toward the end of this block of time that the respondents filed their two Forms 36. The first, filed in March, alleged that the claimant had a full work capacity. The claimant objected on the ground that the treating physician had disabled the claimant. This objection is corroborated by Dr. Mara’s reports, as he had placed the claimant on sedentary duty six months earlier. There was no evidence of any positive change in the claimant’s condition prior to the filing of the Form 36 with Dr. Watson’s attached report, and Dr. Mara’s report of April 9, 2001, confirmed that the claimant was still suffering from cubital tunnel symptoms. Although the informal hearing on the Form 36 was held on April 2, 2001, we find no error in the denial of the Form 36. The trial commissioner was not bound to accept the credibility of Dr. Watson’s opinion at that time, nor was the subsequent trier who presided over the formal hearing required to rely on his opinion over that of Dr. Mara.
The second Form 36 was filed on June 12, 2001. Attached is Dr. Mara’s May 18, 2001 report stating that the claimant needs to be on sedentary duty that does not involve highly repetitive use of her hand. The respondents’ Form 36 stated, “Per report of Dr. Mara, claimant has a sedentary work capacity. Work searches will need to be performed to ensure continuation of benefits.” We do not believe that the trier was bound to cut off the claimant’s benefits immediately upon the filing of that Form 36, given the claimant’s particular situation. Although the performance of job searches is often used to show that light duty employment is unavailable, § 31-308(a) does not actually require work searches. Richardson v. Bic Corp., 4413 CRB-3-01-7 (Aug. 5, 2002). Other evidentiary means may also be adopted to demonstrate entitlement to benefits, depending on the totality of circumstances in a given case. Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996); Rodrigues v. American National Can, 4043 CRB-5-99-4 (July 26, 2000).
Here, the claimant performed hundreds of work searches beginning in September 2001, none of which led to employment. Claimant’s Exhibits K-M. There is also the testimony of Dr. Cohen in the record detailing the severe limitations on the claimant’s employability. Given that evidence, the trial commissioner was within his authority to infer that the claimant would not have been able to find light duty employment between June 12, 2001 and September 8, 2001 (the date of the first job search in evidence). This supports her entitlement to benefits for temporary partial disability pursuant to § 31-308(a), and we find no error in the trier’s entry of such an award.
We also take note of the claimant’s observation that, although the respondents had long ago accepted liability for her carpal tunnel syndrome, they had denied responsibility for her cubital tunnel syndrome via Form 43. At the time the respondents filed their Forms 36, the cubital tunnel syndrome was the primary source of her bilateral hand problems. A Form 36 is designed as a vehicle to request a reduction or discontinuation of benefits in an accepted case, as per § 31-296 C.G.S. Carroll v. Flattery’s Landscaping Inc., 4499 CRB-8-02-2 (March 25, 2003). It performs no function where compensability is being contested. Though the carpal tunnel portion of this case had been accepted, thus triggering benefit payments that would be subject to discontinuance or reduction via the filing of a Form 36, the respondents’ denial of responsibility for the cubital tunnel syndrome cannot be overlooked. In such a situation, the perspective a trial commissioner would adopt in considering their Forms 36 would rightly and necessarily be affected.
Finally, we address the respondents’ argument that they were incorrectly ordered to pay for medical bills submitted by Dr. Simmons, a Massachusetts orthopedist whom the claimant first saw on May 25, 2000, approximately two months after Dr. Mara began observing signs of cubital tunnel syndrome. The claimant was not referred to Dr. Simmons by Dr. Mara. She was instead guided to him by her sister. On that first visit, Dr. Simmons reported that the claimant was suffering from bilateral cubital tunnel syndrome. Claimant’s Exhibit C. He recommended that she be taken out of work and given further tests, as he thought she would likely need cubital tunnel releases. He saw her on several more occasions during 2000, during which time she seemed to be faring better, though he did not feel that the claimant should return to work yet. He then saw the claimant on August 9, 2001, when the claimant sought his opinion as to whether the surgery recommended by Dr. Mara would indeed improve her function. Dr. Simmons reported that surgery would improve some of her symptoms, but probably would not restore her completely, and could not be guaranteed to return her to a work-ready status. The claimant also visited Dr. Simmons on March 25, 2002, looking for further clarification regarding his surgical prognosis. Respondents’ Exhibit 8.
In evaluating the commissioner’s order that the respondents pay for these visits, we remain aware that the respondents denied compensability for the claimant’s cubital tunnel condition. Therefore, the respondents cannot expect that the claimant would have obtained a referral to seek treatment for her cubital tunnel syndrome, as she was left on her own regarding treatment for this injury. Once the trier determined that this injury was compensable, he had the discretion to retroactively authorize all reasonable treatment that the claimant obtained for that injury. Donaldson v. Duhaime, 4213 CRB-6-00-3 (April 30, 2001). Cases such as Leiner v. Newmark & Lewis, 15 Conn. Workers’ Comp. Rev. Op. 147, 2202 CRB-8-94-10 (Jan. 18, 1996), are inapposite insofar as they concern the obligation of a claimant to obtain a referral from her treating physician, or the need for a commissioner to authorize a change of physician.
Admittedly, the fact that Dr. Simmons is not a licensed Connecticut practitioner prevents him from being included in the approved list of physicians that a claimant may choose for examination and treatment under § 31-280(10) C.G.S. and Admin. Reg. § 31-280-1. We concede the respondents’ point that cubital tunnel syndrome would seem to be an injury for which adequate treatment is available in Connecticut; at least, the claimant has made no showing that Dr. Simmons can provide some service that is not offered within this state. See Cummings v. Twin Mfg., Inc., 29 Conn. App. 249 (1992)(out-of-state treatment may be ordered where it is reasonable and necessary, and where equally beneficial treatment is not available in Connecticut); D’Amico v. State/Dept. of Corrections, 4029 CRB-5-99-4 (May 18, 2000). We also acknowledge that this is not a case in which the claimant lives a long distance from Connecticut, thereby establishing a situation in which it would have been unjust to deny out-of-state medical treatment—although Boston is apparently the home of the claimant’s sister, who was helping her obtain treatment. See Melendez v. Home Depot, 61 Conn. App. 653 (2001).
However, the respondents are unsuccessful in their attempt to distinguish this case from Johnson v. Braun Moving, Inc., 3861 CRB-7-98-7 (Nov. 2, 1999)(employer’s refusal to provide competent treating physician under § 31-294d(a) prevented it from objecting to claimant’s visiting orthopedic surgeon in nearby Poughkeepsie, New York). Though the claimant did have a treating physician for her carpal tunnel injury, the respondents did not accept responsibility for the cubital tunnel syndrome. Therefore, they were not in a position to insist that the claimant adhere to the requirements of § 31-280-1 in selecting a doctor to provide her with a second opinion regarding the prognosis of her cubital tunnel condition. As such, it was reasonable for the trial commissioner to order the respondents to pay for Dr. Simmons’ services in relation to that injury. We find no basis upon which to reverse that ruling.
The trial commissioner’s decision is accordingly affirmed.
Commissioners James J. Metro and Howard M. Belkin concur.
1 The term “cubital” is defined in the American Heritage Stedman’s Medical Dictionary as “relating to the elbow or the ulna.” BACK TO TEXT
2 Section 31-308(a) states 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 . . . 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 subject to the provisions of this section. . . .” BACK TO TEXT