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Passeck v. Borough of Naugatuck

CASE NO. 4611 CRB-5-03-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 13, 2004

WILLIAM PASSECK

CLAIMANT- APPELLEE

v.

BOROUGH OF NAUGATUCK

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Andrew J. Morrissey, Esq., Morrissey & Morrissey, LLC, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.

The respondent was represented by William J. Ward, Esq., Ouellette, Deganis, Gallagher & Ward, LLC, 143 Main Street, Cheshire, CT 06410.

This Petition for Review from the January 13, 2003 Finding and Award of the Commissioner acting for the Fifth District was heard July 18, 2003 before a Compensation Review Board panel consisting of Commissioners James J. Metro, Howard H. Belkin, and Ernie R. Walker.

OPINION

JAMES J. METRO, COMMISSIONER. The respondent appeals from the January 13, 2003 Finding and Award of the Commissioner acting for the Fifth District. In that Finding and Award, the trial commissioner awarded the claimant benefits pursuant to § 31-308a.

The pertinent facts are as follows. The claimant was employed by the respondent municipality as a firefighter. On August 6, 1993 the claimant suffered a heart attack. Thereafter, the claimant underwent angioplasty and cardiac bypass surgery. The claimant’s treating cardiologist is Dr. Dennis Dobkin. On December 21, 1993, Dr. Dobkin opined that claimant was unable to return to work as a firefighter but could return to other work. The claimant was awarded a 25 percent permanent partial disability for the loss of function to his cardiovascular system. Although claimant was eligible for a disability pension, he took a regular retirement based on his years of service as that pension resulted in more money.1

Following his retirement as a firefighter the claimant took a job with Courtney Dodge where he works between 20-25 hours per day as a driver. The claimant is paid $7.00 per hour. His duties include; driving to the Motor Vehicle Department, the bank, transporting cars between dealerships and driving customers to and from their places of employment to the dealership.

On November 4, 1999 having reached the age of 62 the claimant applied for Social Security old age benefits. The claimant testified he believed that once he went on Social Security he was limited to earning up to $9,000 annually before suffering adverse tax consequences. In the years 2000 and 2001 the claimant earned $8,334.20 and $8,789.90 as a result of his employment with Courtney Dodge. The claimant claimed that the diminution in his earnings from the $12,383 he earned from that job in 1999 was a result of his increased fatigue level. In his deposition testimony, Dr. Dobkin opined the claimant could not work as a firefighter and while he may have some work capacity, Dr. Dobkin believed the claimant was not employable. See Findings ¶¶ 13-16; Deposition of Dr. Dennis L. Dobkin pp.17-19, Respondent’s Exhibit 1.

The trial commissioner found the claimant’s receipt of a regular retirement pension was not in and of itself evidence of an intention to remove himself from the workforce. See Findings, ¶ D. Additionally, the trier found that the claimant continued to be disabled from his occupation as a firefighter but was entitled to § 31-308a benefits at the weekly rate of $540.57 beginning July 2, 2001 and for 104 weeks thereafter.

On appeal the appellant presents the following issues for review: (1) Whether the trial commissioner erred in concluding claimant was entitled to § 31-308a benefits as; (a) the claimant limited his earning capacity for reasons other than light duty status, i.e., it was the claimant’s choice to retire, (b) the claimant limited his earning capacity so as to avoid negative tax consequences (c) the claimant did not have a work capacity after February 13, 2002 as claimant’s treating physician believed the claimant was totally disabled as of that date and (d) any such award of benefits pursuant to § 31-308a should have been limited from July 2, 2001 until the claimant’s 65th birthday on November 4, 2002. We are not persuaded by any of the appellant’s arguments and affirm the commissioner’s conclusion in this matter.

The first issue presented by the appellant is whether the claimant limited his earning capacity for reasons other than his light duty status. As we understand the respondent’s argument, it contends that as the claimant chose to retire and the retirement he elected was not one based on disability, the claimant, in effect, caused the diminution in his earning capacity. The appellant argues there is no medical report contemporaneous with claimant’s retirement that opines the claimant could not continue his work as a firefighter. In fact, the appellant refers to ¶ 12 of the trial commissioner’s Finding and Award in which it is noted that on November 10, 1994, Dr. Dobkin indicated that the claimant recovered from his bypass and was asymptomatic.

In essence, the appellant suggests the trier’s inference that the claimant could no longer work as a firefighter following his cardiac bypass surgery was without medical evidentiary support. One of the functions of a trial commissioner is to make factual findings and conclusions based on inferences drawn from the evidence presented. Hayes v. Total Fulfillment Services, 4482 CRB-4-02-1 (Feb. 5, 2003); Bartlett v. J.B. Williams Soap Factory, 4511 CRB-8-02-3 (March 3, 2003). We will not disturb such inferences unless unreasonable. In the instant matter, we cannot say that the trier’s award of § 31-308a benefits due to the claimant’s diminished earning capacity resulting from his heart attack and subsequent medical/surgical treatment was unreasonable.

The second issue raised asks us to consider whether the trial commissioner erred in awarding § 31-308a benefits where the claimant’s hours of work were reduced due to his concern for the negative tax consequences of earnings coupled with his receipt of Social Security old age benefits. Here again the respondent argues the claimant was able to work more hours but chose to work fewer hours and thereby reduce his earning capacity due to influences beyond his disability. In support of this argument, the trial commissioner would have to have found that the claimant’s reduction in the hours he worked was unrelated to his physical disability. The claimant testified he curtailed his hours of employment with Courtney Dodge due to his levels of fatigue. See Finding, ¶ 29.

The trier’s failure to find as the respondent would have him, results from the weight and credibility he assigned to the evidence presented. What weight and credibility is to be assigned to such evidence is a matter solely within the trial commissioner’s purview. Monaco v. School Transportation Services, 4549 CRB-3-02-7 (July 8, 2003). We will not disturb such findings and conclusions unless without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The respondent next argues that the claimant was not entitled to § 31-308a benefits after February 13, 2002 because Dr. Dobkin opined the claimant was permanently and totally disabled. Whether a claimant is totally disabled is a factual determination to be made by the trial commissioner. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 454 (2001); Duddy v. Filene’s (May Department Stores Co.), 4484-CRB-7-02-1 (Oct. 23, 2002); D’Amico v. State/Dept. of Correction, 4287 CRB-5-00-9 (August 3, 2001), aff’d, 73 Conn. App. 718 (2002), cert. denied, 262 Conn. 933 (2003). Here claimant’s treating physician believed the claimant was totally disabled; however, the claimant continued his part-time employment with Courtney Dodge. We can think of no more persuasive evidence supporting the trier’s finding and conclusion as to claimant’s work capacity than the claimant’s actual work performance. Furthermore, while the issue of claimant’s possible entitlement to total disability benefits was not at issue before the trial commissioner we would be hard pressed to believe that had the claimant made such a claim the respondent would not reference claimant’s actual employment as evidence of his work capacity.

The respondent’s final issue asks whether the trial commissioner erred in permitting the claimant § 31-308a benefits for the period following his 65th birthday and his receipt of Social Security old age benefits. Again, the respondent contends that as the claimant was accepting retirement benefits he should not be permitted § 31-308a benefits. As legal support of this argument the respondent cites Merola v. The Jackson Newpaper, Inc., 3344 CRB-3-96-5 (Oct. 27, 1997). However, as appellees note, Merola is wholly inapplicable to the case at bar. In Merola, the claimant testified he was not looking for work and it was his intention to retire on his 65th birthday. Here, the claimant continued his employment, thus, Merola is not factually analogous to the instant matter. We also note that we do not read Merola to stand for the proposition that receipt of Social Security old age benefits is a bar to § 31-308a benefits.2

We therefore affirm the January 13, 2003 Finding and Award of the Commissioner acting for the Fifth District.

Commissioners Howard H. Belkin and Ernie R.Walker concur.

1 See trial commissioner’s January 29, 2003 Ruling on Respondent’s Motion To Correct. BACK TO TEXT

2 In Merola v. The Jackson Newpaper, Inc., 3344 CRB-3-96-5 (Oct. 27, 1997) this tribunal noted:

The claimant’s receipt of Social Security retirement benefits suggests that he now considers himself retired, and it is undisputed that he is no longer looking for work. The commissioner would have been better advised to limit the § 31-308a award to the period of time before the claimant’s 65th birthday, and to require the claimant to make a separate showing that circumstances warranted further § 31-308a benefits for any period of time postdating his 65th birthday. BACK TO TEXT

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