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Shepard v. Wethersfield Offset

CASE NO. 4886 CRB-1-04-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 20, 2005

WADE A. SHEPARD

CLAIMANT-APPELLANT

v.

WETHERSFIELD OFFSET

EMPLOYER

and

UTICA MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert Fitzgerald, Esq., 22 North Street, Willimantic, CT 06226.

The respondents were represented by John A. Cassone, Esq., Avery, Crone & Cassone, 25 Third Street, Stamford, CT 06905.

This Petition for Review from the November 17, 2004 Finding and Dismissal of the Commissioner acting for the First District was heard June 17, 2005 before a Compensation Review Board panel consisting of Commissioners Stephen B. Delaney, Michelle D. Truglia and James J. Metro.

OPINION

STEPHEN B. DELANEY, COMMISSIONER. The claimant has petitioned for review from the November 17, 2004 Finding and Dismissal of the Commissioner acting for the First District. He contends on appeal that the trier erred by dismissing his claim for § 31-308(a) benefits. We find no error, and affirm the trial commissioner’s decision.

The claimant worked as a pressman for the respondent Wethersfield Offset for approximately 15 years. In January 1999, he began to develop contact dermatitis on his hands. He continued working at his regular salary through August 2001, while claiming that this condition developed because of exposure to chemicals at work. He claims that this dermatitis is what caused him to stop working for Wethersfield Offset. The respondents have accepted liability for this condition, though no voluntary agreement has ever been issued. The claimant began receiving temporary partial disability benefits beginning in August 2001 at the rate of $517.96 per week.

In April 2002, the claimant’s father died, and he applied for his late father’s former position as a salesman at a company called Forms for Business. He got the job, which involves soliciting and servicing accounts for a company that produces business forms. Along with a salary and commissions, he receives $150 per month as partial reimbursement for business expenses. Since taking this job, the claimant has not interviewed for any positions in the graphic arts design field, his area of expertise.

The claimant now attempts to collect wage loss benefits based on the differential between his current wages and the wages he would have earned had he been able to continue in his former position. At trial, evidence was presented showing the wages of various comparable employees who still worked at Wethersfield Offset, though the president of the company testified that there has been a decrease in the volume of work since the claimant left, as its top client now maintains a much smaller account due to a change in its business needs.

The trial commissioner also took note of the claimant’s testimony that he is not sure what causes his continued flare-ups of dermatitis, and his speculation that such irritants as dry air or the antifreeze he puts in his car could be triggering the condition. The claimant also testified that, to his knowledge, it has never been determined what exactly causes his dermatitis. The trier went on to find that the claimant failed to submit evidence to show that his contact dermatitis diminished his earning capacity. She also stated that she did not find his testimony persuasive as to his claim for temporary partial disability benefits, and that no conclusive medical evidence was presented to show that the claimant could not continue to work as a pressman. She therefore dismissed the claimant’s request for benefits. The claimant then filed an appeal to this board.

With regard to our standard of review on appeal, it is not the role of this board to retry the facts of a case by drawing our own factual inferences from the evidence. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Richardson v. Bic Corporation, 4413 CRB-3-01-7 (August 5, 2002); Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001). “All determinations of evidentiary credibility are left solely to the trial commissioner, who as the trier of fact is charged with deciding which, if any, documentary exhibits and witness testimony are the most believable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board may review factual findings only to determine whether there is evidence in the record to support them, and to ensure that the trier has not omitted material facts from her findings that are truly admitted and undisputed. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). As for the legal conclusions drawn from those findings, we may disturb them only if they result from an incorrect application of the law, or from an unreasonably drawn inference. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).” Richardson, supra.

Section 31-308(a) allows a partially disabled employee to collect compensation based upon the difference between the amount the claimant is able to earn after his injury and the wages currently earned by an employee in a position comparable to that held by the claimant before his injury. If an employer procures employment that is suitable to an injured employee’s light duty work capacity, the statute directs that those wages be taken as the earning capacity of the injured employee during that period of employment. We have stated many times that whether a claimant has satisfied the criteria of § 31-308(a) is essentially a factual issue for the trier to decide. See, e.g., Thomas v. Greenwich, 4697 CRB-7-03-7 (August 10, 2004); Richardson, supra; Martin v. A. Aiudi & Sons, LLC, 4384 CRB-6-01-5 (April 25, 2002).

The burden of proving entitlement to benefits is on the claimant, rather than it being the respondent’s burden to disprove entitlement. Richardson, supra, citing Baldino v. Corcoran, 4275 CRB-4-00-8 (July 23, 2001). “Though no one method of demonstrating entitlement to benefits, such as work searches, is statutorily mandated; Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996); it is necessary as a practical matter that a claimant establish an earning capacity in order to prove wage loss.” Thomas, supra; see also, Rodrigues v. American National Can, 4043 CRB-5-99-4 (July 26, 2000). There are several ways that this can be done. A claimant may submit the opinion of a vocational rehabilitation specialist into evidence; see, e.g., Covaleski v. Casual Corner, 4419 CRB-1-01-7 (June 27, 2002)(claimant was found to be totally disabled as a practical matter); he may obtain light duty employment that can serve as a basis for calculating his earning capacity; Johnston v. Thames Permacrete Corp., 15 Conn. Workers’ Comp. Rev. Op. 402, 2278 CRB-2-95-2 (August 16, 1996); he may be offered light duty employment that can serve as a barometer; Levey v. Farrel Corp., 3649 CRB-4-97-7 (July 30, 1998)(claimant could have earned same wages as he had prior to injury had he not been terminated for cause); or he may demonstrate in some way that, despite being willing and able to perform restricted work, no suitable employment is available in the area. Baldino, supra.

We agree with the instant claimant’s assertion that he was not required to exhaust every potential job-seeking avenue in order to establish a diminished earning capacity. Siebold v. Helicopter Support, Inc., 4392 CRB-3-01-5 (September 6, 2002). “Where . . . a claimant has obtained work after making consistent but unsuccessful efforts to find suitable employment at a variety of jobs, . . . a trial commissioner is [not] abusing his discretion by finding that his current wages reflect his earning capacity simply because the claimant has experience in other areas that might also provide employment opportunities.” Id., citing Genovesi v. Choice Designs, Inc., 13 Conn. Workers’ Comp. Rev. Op. 218, 1745 CRB-5-93-6 (April 12, 1995). However, whether or not a claimant’s efforts to obtain employment are sufficient to establish a diminished earning capacity is a factual question for the trial commissioner to resolve. See, e.g., Chambrello v. Shaw’s Supermarkets, 4008 CRB-6-99-3 (February 1, 2000)(trier accepted job searches as reasonable attempts to find work); Pontoriero v. Sanzo Concrete Construction Co., Inc., 3492 CRB-4-96-12 (March 6, 1998)(trier’s finding that claimant had not attempted to maximize earning capacity was similar to finding that claimant failed to perform sufficient job searches to establish wage loss). A trial commissioner may determine that a claimant has voluntarily settled for a job below his earning potential, particularly where the respondent introduces evidence to show that the claimant has a greater earning capacity. See Genovesi, supra (respondents could have offered evidence to show that claimant, a trained silk screen painter, had measurably higher earning capacity than that shown by pizza-making jobs).

Here, there was testimony that the claimant was a competent and experienced pressman with a high-school diploma, some college credits, and little experience working as anything other than a press operator. May 17, 2004 Transcript, pp. 19, 23-24; March 22, 2004 Transcript, pp. 25-26, 34. The claimant also testified that, for a short while prior to taking the job at Forms for Business, he attempted to work as a mechanic doing printing press maintenance, but was also unable to continue in that role because of the presence of irritating chemicals. Id., p. 34. He testified that, beginning in August 2001, he did job searches and applied for different jobs, submitting his searches to the respondent insurer. Id., p. 26. The claimant also stated that he had begun studying graphic arts and design, thinking that this would be his “next step.” Id., p. 38. Meanwhile, in April 2002, he took the job with Forms for Business. Id., p. 27. This job pays the claimant a salary between $10,000 and $14,000 per year, with approximately twice that amount in earned commissions, and $150 per month for expenses. Id., pp. 28-29, 38. The evidence shows that the claimant earned $48,080 in wages for the year 2003 (his first full year at Forms for Business), based upon his federal income tax return. Claimant’s Exhibit L.

Evidence was also admitted to show that, from 2002-2004, pressmen who continued to work for Wethersfield Offset were making between $18 and $20 per hour. Claimant’s Exhibits B, G; March 22, 2004 Transcript, pp. 14-21. Overtime pays time and a half. See Claimant’s Exhibits B, G. Assuming an hourly wage of $20 per hour with nine hours of overtime per week (the averages of the company’s top pressman, who worked by far the most overtime of any employee, and who was qualified to run important pieces of equipment that the claimant could not operate, according to the owner), the claimant would have earned about $55,640, $14,040 of which would have been overtime pay. However, the owner also testified that the press that the claimant operated no longer runs on weekends due to the diminished work load. May 17, 2004 Transcript, p. 26. If one takes away even half of that overtime pay, the claimant would not have earned less at his current job for the year 2003 than he would have earned at Wethersfield Offset.

We must also consider that, as was her prerogative as the finder of fact, the trial commissioner did not find the claimant’s testimony regarding temporary total disability to be persuasive. See Duddy, supra; Pallotto, supra. Furthermore, the trier found the medical evidence inconclusive with respect to causation. Dr. Kugelman, for example, stated that she believed there was a causal relationship between the claimant’s rash and his printing press work based on the fact that symptoms have not occurred since the claimant left the printing field, though she could not identify a specific agent that caused the problem. Claimant’s Exhibit N. Dr. Srinivasan, the treating allergist, relied upon the claimant’s observation of his own symptoms in concluding that it was in the claimant’s best interest to stay away from the chemicals present in the printing industry. Claimant’s Exhibit O. While testifying, the claimant acknowledged that he still has flare-ups of dermatitis, possibly from chemicals he touches, but also possibly from the dry air. March 22, 2004 Transcript, pp. 33-34. He was not quite sure.

The trial commissioner was entitled to interpret this evidence as inconclusive with respect to the establishment of a causal connection between the claimant’s dermatitis, his disability, and his former workplace. She was also entitled to consider the fact that the claimant took a job selling business forms that did not appear to take advantage of his training or expertise. Together with the questionable evidence regarding actual wage loss and the absence of job searches in the record, it was not an abuse of the trier’s discretion for her to find that the claimant did not meet his burden of proving entitlement to temporary partial disability benefits based on the totality of the evidence presented. Therefore, it is our duty to affirm the trial commissioner’s decision. Warren, supra; Pallotto, supra.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Michelle D. Truglia and James J. Metro concur.

Workers’ Compensation Commission

Page last revised: November 2, 2005

Page URL: http://wcc.state.ct.us/crb/2005/4886crb.htm

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