State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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McCarthy v. Hartford Hospital

CASE NO. 5079 CRB-1-06-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 8, 2007

JANICE MCCARTHY

CLAIMANT-APPELLEE

v.

HARTFORD HOSPITAL

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

CONSTITUTION STATE SERVICE CO.

INSURANCE ADMINISTRATOR

APPEARANCES:

The claimant was represented by John J. Quinn, Esq., Furniss & Quinn, P.C., Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.

The respondent was represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the March 10, 2006 Finding and Award of the Commissioner acting for the First District was heard October 20, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and James J. Metro.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the March 10, 2006 Finding and Award of the Commissioner acting for the First District. It argues that the trier erroneously awarded the claimant compensation benefits pursuant to § 31-308a C.G.S. We affirm the decision of the trial commissioner.

The trial commissioner found that the claimant suffered an injury to her left foot and her left hand on April 1, 1999. The case was accepted, and the claimant was compensated for permanent partial impairments of her left foot (15%) and her left non-master hand (14%). The claimant retired from full-time work at Hartford Hospital on July 1, 2003, but stayed on part-time through September 2003 earning an average of $365.79 per week. After a month’s hiatus, she resumed working part-time from November 1, 2003 through May 2004, earning an average of $266 per week. Her average weekly wage at the time of her injury, $671.31, yielded a compensation rate of $413.24, as per an approved voluntary agreement. The claimant sought § 31-308a benefits from July 2, 2003 through April 9, 2004.

The claimant’s retirement was found to be voluntary, because of the lingering effects of her hand and foot injuries, and her fear that her job performance would suffer if she continued working. She said that she struggled to find suitable employment following the completion of her part-time hospital assignments. The respondent opposed her request for § 31-308a benefits, contending that she did not seek full-time work for a long while after retirement, and that she did not introduce any medical evidence of physical restrictions caused by her permanent injuries. The trial commissioner concluded that benefits should be paid from July 2, 2003 to September 30, 2003, at a weekly rate of $117.93, and from November 1, 2003 through the expiration of her 40.45 weeks of § 31-308a eligibility at a rate of $231.88. Benefits were denied during October 2003 because the claimant did not seek work. The respondent has appealed that decision, and the denial of its subsequent Motion to Correct, in which it proposed that the claimant’s earnings had increased following her return to work, and that the claimant’s physician had not acted on her suggestion that he prescribe her additional physical restrictions.

After an award of § 31-308(b) specific indemnity benefits has been made, § 31-308a gives a commissioner discretion to award compensation based upon the difference between the prevailing wage for a position comparable to that held by the injured employee prior to her injury, and “the weekly amount which such employee will probably be able to earn thereafter . . . to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age . . . .” The duration of this compensation may not exceed the length of time spanned by the claimant’s entitlement to permanent partial disability benefits. The respondent contends that the claimant failed to meet her burden of proof under this statute, as she did not produce any evidence that her earning capacity was diminished by her permanent injuries. It asserts that she returned to full duty on May 7, 2001, with her only work restriction being to avoid repetitive motion. Thereafter, she continued at the same job and performing the same job functions until her retirement, with no loss in pay.

In reviewing the trial commissioner’s award, we apply a deferential standard of review because of the discretionary nature of § 31-308a benefits. As long as the trial commissioner considers the factors required by the statute, this board will not reverse the trier’s decision absent an abuse of discretion. Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 295 (1999); Degiacomo v. Arwood Corp., 3486 CRB-1-96-12 (January 21, 1998). “An abuse of discretion exists when a court . . . has decided the matter so arbitrarily as to vitiate logic, or has decided based on improper or irrelevant factors.” In re Shaquanna M., 61 Conn. App. 592, 603 (2001). The requirements for proof under § 31-308a include some of the elements of a claim for temporary partial disability under § 31-308(a), along with the pure factual determinations regarding loss of earning capacity based on the aforementioned statutory factors, and the type of proof necessary for a trier to make a discretionary § 31-308a award must be considered within the totality of the evidentiary hearings, including the claimant’s personal testimony. Lagueux v. Veilleux, 9 Conn. Workers’ Comp. Rev. Op. 177, 180, 876 CRD-6-89-6 (August 13, 1991).

As an example, this board has reversed a § 31-308a award where a claimant had sustained a 20% permanent disability of the back, but was later released to “full-time, heavy-duty work,” and then obtained a job earning more than he had with his previous employer—which job he quit due to a dispute. DiBello v. Barnes Page Wire Products, 4290 CRB-7-00-9 (September 25, 2001). In that case, none of the statutory factors (nature and extent of injury, experience, education, availability of work) had been openly discussed by the trier of fact, and the evidence suggested no decrease in earning capacity. This board remanded the case to the trier for an explanation of the award’s basis.

Here, the trial commissioner addressed the statutory factors. There was, however, no medical evidence offered into the evidentiary record by either party. The reviewable record consists of the claimant’s testimony at the September 26, 2005 formal hearing, along with the four approved voluntary agreements on file that establish the permanent partial impairment percentages listed above.1 The claimant testified regarding her physical difficulties with each of the jobs she has held since her injury, and it is that testimony which provides the essential foundation of the trial commissioner’s award.

Specifically, the claimant testified that her injury occurred on April 1, 1999, when she was 51 years old, and had been working at Hartford Hospital for 17 years performing secretarial duties. September 26, 2005 Transcript, pp. 12-13, 53. At the time of her injury, she was earning an average weekly wage of $671.31 per week, and was required to work on a lot of bulk mailings, answer many phone calls, and do a lot of typing. Id., pp. 14-15. Much of her work involved assisting the credentialing (background check) process for physicians working for the hospital. A ganglion cyst was removed from the left side of her foot in the fall of 1999, and an arthroplasty (joint replacement) was performed on her left thumb in the early spring of 2001. At about six months following her hand surgery, symptoms of pain began to recur, with severe pain occurring when she tried to lift and grasp objects, despite additional physical therapy and trigger point injections. Id., pp. 15-18, 22.

In the fall of 2001, the claimant switched to a job at the Institute of Living, which she thought would be easier. Id., pp. 19, 54. She was promoted to office manager, a job that required her to set up and break down charts for newly admitted patients, which involved difficult lifting. Id, pp. 19-20. She had a hard time with the stairs, as her new building did not have an elevator, and her duties required her to travel among three stories. Id., p. 30. She also noted difficulties handling files and notebooks (especially lifting them from and squeezing them back into drawers), removing staples, opening doors, fastening packages with binder clips, and unsnapping three-ring binders. Id., pp. 33-37. She eventually got a headset for telephone conversations, as her hand would shake when she held the phone receiver to her ear. Id., p. 38.

Based on positive performance appraisals, the claimant’s rate of pay had increased to the point that she could have earned over $40,000 per year had she remained at her job. Id., p. 55, 64. However, she decided that she could not handle it any longer, and chose to retire as of July 1, 2003, even though her retirement benefits were reduced by about 40 percent because she retired early. Id., pp. 28, 38-39. Her physical pain and discomfort were one of the reasons she made that choice. Id., p. 29. She also feared a decline in her performance, as she took pride in her exemplary job appraisals, and worried that she could be laid off due to poor job performance and have her retirement package affected. Id., pp. 64-65. The claimant shared her concerns about her work capabilities with Dr. Ashmead in 2002, but he did not issue any new restrictions, though he had ordered and received a description of her job and work site. Id., pp. 58-60. Instead, he continued to advise that she restrict repetitive motions. Id., p. 59.

After retiring, the claimant stayed on for a few months to help train her replacement, working 19 hours per week, which was the limit she was allowed to work following her retirement. Id., p. 39. She earned $365.79 per week, which represents an hourly rate greater than what she was making on her date of injury. Id., p. 66. In September, the training program ended. The claimant took October off, while awaiting the return of another hospital employee whom she would be assisting in a new role. Id., pp. 40-41. In that per diem position, she again worked 19 hours per week at a lesser pay rate of $14 per hour and $266.00 weekly, and discovered that the job involved a lot more work than she had expected. Id., pp. 41-42, 66. Extensive filing was required, along with credentialing work. The claimant experienced physical difficulties due to her hand. When her co-worker announced in April or May 2004 that she was pregnant and the claimant’s work responsibilities would be increased, the claimant decided that she had to leave the job. Id., pp. 42-43, 61.

As the hospital did not have any other per diem jobs available, the claimant applied externally. She was eventually hired by the Town of Wethersfield for a 19-hour-per-week job that paid $15 per hour. Id., pp. 43, 48-49. However, the job required more work and physical stress (such as a 550-piece bulk mailing) than the claimant felt she could handle, and she only lasted a half-day. The claimant then took a $10 per hour, 12-hour-per-week position at Financial Careers, Inc., which was slower-paced. Id., p. 49. She remained at that job until May 2005. She testified that she put in other part-time applications to complement that employment, but received no response. Id., p. 50. She was subsequently laid off, but managed to find another job as a receptionist earning $13 per hour, and about $500 per week. Id., pp. 46-47, 63. At the time of the formal hearing, she was still experiencing a lot of pain in her left hand and tenderness in her left ankle, but thought she would be able to continue performing her current job as long as she got a phone headset. Id., p. 51.

Our workers’ compensation system is designed for physicians to play a vital role by providing medical care for injured workers, diagnosing their conditions and degrees of impairment, and facilitating their return to work once they are physically ready. A physician’s opinion identifying the extent of a claimant’s compensable injury and any resulting work restrictions is thus the most accepted, reliable and effective way to establish that part of the prerequisite for a wage-loss-based benefit claim. Without such evidence, it can be difficult to persuade a factfinder to make a discretionary § 31-308a award. See, e.g., DiBello, supra; Bailey v. Stripling Auto Sales, 15 Conn. Workers’ Comp. Rev. Op. 369, 3095 CRB-2-95-6 (June 28, 1996). However, just as the Act does not require job searches in order to establish the unavailability of suitable work under § 31-308(a) or § 31-308a,2 and other evidentiary bases may be used to that end; Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996); Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 295-96 (1999); § 31-308a does not require a specific medical assessment in order to demonstrate that a claimant with a documented permanent partial disability has a reduced earning capacity. This is distinct from § 31-307, wherein total incapacity is a matter of continuing proof that requires updated medical reports. Brown v. State/Dept. of Mental Health & Addiction Services, 4053 CRB-2-99-5 (July 27, 2000), aff’d, 66 Conn. App. 882 (2001)(per curiam), cert. denied, 259 Conn. 913 (2002); see also, Laliberte v. United Security, Inc., 261 Conn. 181 (2002)(incarcerated claimant remained entitled to collect total incapacity benefits if warranted by medical condition, despite his unavailability for employment).

In this case, there is an established permanent partial disability, and a continuing doctor’s recommendation that the claimant restrict repetitive motion, which is alluded to in the testimony. See Transcript, pp. 58-59. She also spoke of the pain that she felt when trying to perform certain actions with her left hand or left foot, and her discovery that these difficulties limited her in what she could do. This evidence was competent to establish that the nature and extent of the claimant’s injury had an impact on her ability to work. The claimant then testified regarding her efforts to find suitable employment given her physical limitations and her work experience. She found several different jobs following her retirement, including two part-time positions at the hospital. She was also rejected numerous times. The trier was entitled to find this testimony credible in determining the impact that the claimant’s physical condition was having on her ability to secure employment, and to use her described experiences as evidence of “the availability of work for persons with such physical condition and at the employee’s age.” This board cannot disturb credibility determinations on review. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).

At oral argument, the respondent asserted that it was not given an opportunity to accommodate the claimant’s restrictions before she retired. That is a serious assertion, as the employer’s potential ability to accommodate the claimant’s restrictions would have been material to a determination of her earning capacity.3 The record shows that, prior to retiring, the claimant e-mailed her employer’s workers’ compensation nurse a list of her work difficulties. See Transcript, p. 59. No evidence was presented to show that the respondent tried to resolve these problems, or that it invited a discussion of the matter; nor do we know if the claimant followed up on those concerns, or whether she received some indication that doing so would be futile. However, the claimant did notify her employer of the restrictions she was facing despite the respondent’s assertion to the contrary. Though another factfinder might have inferred that a credible claimant would have been more persistent, this trial commissioner drew no such negative inference against her. Thus, the fact that the claimant’s retirement was taken voluntarily did not require a factual finding that she remained able to perform her previous job. See Passeck v. Naugatuck, 4611 CRB-5-03-1 (January 13, 2004) (firefighter’s choice to receive regular retirement pension did not show intent to quit workforce given medical evidence of disability from his occupation).

As to earning capacity, there are several ways for a claimant to prove it as an evidentiary matter, and whether or not that burden has been met is a factual issue for the trier to resolve. Shepard v. Wethersfield Offset, 98 Conn. App. 682, 687 (2006), cert. denied, 281 Conn. 911 (2007). The claimant’s performance of a part-time job with Hartford Hospital following her retirement was an acceptable method of such proof. The trier was entitled to take into account the claimant’s particular circumstances, including her 22 years of work experience at the hospital and the hourly wage she was to be paid, and find that her wages at the hospital accurately reflected her earning capacity. Fox v. New Britain General Hospital, 4414 CRB-6-01-7 (August 6, 2002); Kropf v. Lloyd Davis, D.D.S., 3229 CRB-8-95-12 (August 27, 1997). The law did not require the claimant to offer additional proof that she was maximizing her earning capacity in order to qualify for benefits. Fox, supra; Johnston v. Thames Permacrete Corp., 15 Conn. Workers’ Comp. Rev. Op. 402, 2278 CRB-2-95-2 (August 16, 1996); Genovesi v. Choice Designs, Inc., 13 Conn. Workers’ Comp. Rev. Op. 218, 220, 1745 CRB-5-93-6 (April 12, 1995). Also, the respondents did not show that more lucrative jobs were in fact available. Thus, the record contains sufficient evidence to support the claimant’s § 31-308a award.

The trial commissioner’s decision is affirmed. Insofar as benefits remain unpaid pending appeal, we award the claimant interest pursuant to § 31-301c(b) C.G.S.

Commissioners Donald H. Doyle, Jr., and James J. Metro concur.

1 The trial commissioner did not take administrative notice of these voluntary agreements, but the respondent conceded on the record that the claimant had a permanent partial disability of the foot and ankle as reflected in those agreements. Transcript, pp. 6, 69. Furthermore, an approved voluntary agreement carries the force of an award under § 31-296 C.G.S., and constitutes part of the trial record, of which the commissioner or this board may take notice, as its accuracy is not open to question. Papa v. Jeffrey Norton Publishers, Inc., 4486 CRB-3-02-1 (February 25, 2003), citing Moore v. Moore, 173 Conn. 120, 122 (1977). We thus take notice of the approved voluntary agreements in the agency file, along with the supporting medical reports attached to those agreements. We note that neither party has specifically based argument on Dr. Ashmead’s assessments of work capacity in those medical reports, nor did those reports become part of the record for the purpose of determining work capacity. Thus, it would be improper to cite the contents of those reports to that end, as neither party has been notified that they would be so considered.

We also observe that the trial commissioner’s award of benefits was for 40.45 weeks, which is the maximum payable under § 31-308a based upon the total duration of the claimant’s specific indemnity awards. This includes the 3.1 weeks awarded following an increase in the claimant’s left hand permanency rating from 12% to 14% diagnosed by Dr. Ashmead on August 23, 2004, which report is attached to the approved voluntary agreement dated March 2, 2005. Technically, the first 37.35 weeks of the claimant’s § 31-308a benefits would have run out on or about May 11, 2004, based upon ¶ C of the trial commissioner’s award. Thus, 3.1 weeks became payable on or about September 14, 2004. The language of ¶ C, § 3 of the award grants the claimant benefits at the rate of $231.88 per week “until the expiration of the Claimant’s eligibility for § 31-308a benefits.” No error has been alleged by either party with regard to this minor wrinkle in calculating the claimant’s benefit rate, although the claimant had ceased working for Hartford Hospital by that time. BACK TO TEXT

2 This is at least true for injuries occurring prior to July 1, 1993. See Smith v. Bic Corp., 4169 CRB-3-00-1 (April 30, 2001). For injuries on or after July 1, 1993, § 31-308a requires a claimant to be “willing and able to perform work in this state” in order to collect additional benefits. Public Act 93-228. We have yet to determine whether that language could be satisfied by a claimant who has not actively looked for work, though whether a claimant is “willing and able” to work has been characterized as a factual question. Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006). BACK TO TEXT

3 We recognize that the Workers’ Compensation Act is not a “reasonable accommodations” piece of legislation affording an employee the general right to allowances for a physical disability, beyond the provisions of § 31-313 C.G.S. (a provision not at issue here) that allow a claimant to request transfer to available light duty work during a period of medical treatment or rehabilitation, or on account of physical incapacity resulting from injury. Mele v. Hartford, 270 Conn. 751, 772 (2004). BACK TO TEXT

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