State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Morales v. Marlin Firearms

CASE NO. 5123 CRB-3-06-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 10, 2007

ISMAEL MORALES

CLAIMANT-APPELLANT

v.

MARLIN FIREARMS

EMPLOYER

and

EBI COMPANIES

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by John G. Miller, Esq., Thompson and O’Connor, 89 East Main Street, Meriden, CT 06450.

The respondents were represented by Maureen Driscoll, Esq., and Maribeth McGloin, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06824.

This Petition for Review from the August 2, 2006 Finding of Denial of the Commissioner acting for the Third District was heard February 23, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. It is indisputable that the benefits available under § 31-308a C.G.S. are discretionary benefits which a trial commissioner may award a claimant who can prove his or her case. The claimant in this matter sought such benefits but was unsuccessful in persuading the trial commissioner he should be awarded these benefits. On appeal, he asserts the trial commissioner abused his discretion when he issued his denial. Upon review, we find the trial commissioner acted within his discretion in denying these benefits. Accordingly, we uphold the trial commissioner and dismiss this appeal.

The trial commissioner held a formal hearing on January 23, 2006 at which the claimant and a representative of the respondent testified, and where the claimant submitted 14 exhibits. Following the hearing the trial commissioner found the following facts which are pertinent to this appeal.

The claimant suffered a work related rotator cuff injury of the left shoulder in 1999 and was still employed by the respondent in 2002. Findings, ¶¶ 1-3. He previously had shoulder surgery in May 2000 and was paid specific benefits for a 12% permanent partial impairment of the left arm. Findings, ¶¶ 4-5. On September 11, 2002 the claimant suffered a work related injury to his right shoulder, which was accepted as a compensable injury by the respondents. The claimant’s treating physician, Dr. John Daigneault performed right shoulder rotator cuff surgery on the claimant in March 2003. Findings, ¶¶ 7-11. A Voluntary Agreement was reached between the claimant and the respondent which awarded the claimant 28.08 weeks of specific benefits for a compromised impairment rating of 13.5%. Findings, ¶ 13.

Following the surgery, the claimant was cleared to return to work with restrictions. His treating physician released him on December 10, 2003 for sedentary work with no overhead use or repetitive motion of the arm until mid January 2004. Findings, ¶ 14. The respondent’s examiner, Dr. David Kalayjian, opined in October 2003 that the claimant should be limited to no overhead work, no repetitive lifting, and no lifting over four to five pounds. Findings, ¶ 15. The respondents provided light duty work to the claimant on a drill press on January 21, 2004. Findings, ¶¶ 17-18.

The trial commissioner cited the testimony of the respondent’s Director of Risk Management that the light duty job offered to the claimant involved very little physical exertion. Findings, ¶¶ 19-25. However, the claimant worked on the drill press for three hours and said his shoulders were painful. Findings, ¶ 26. He refused to try any other light duty work and reported to the company nurse. He was subsequently laid off. Findings, ¶ 28-29.

Following that attempt to accommodate the claimant the respondents paid the claimant benefits under § 31-308(a) C.G.S until October 2004. Findings, ¶ 30. They commenced the payment of the 28.08 weeks of specific benefits in September 2004. Findings, ¶ 31. They also paid the claimant 13 weeks of benefits under § 31-308a C.G.S. in August 2005. Findings, ¶ 32. He has decided not to obtain additional surgery recommended by his treating physician. Findings, ¶ 34. Since the payment of the initial weeks of § 31-308a C.G.S. benefits the claimant has sought an additional 15.08 weeks of § 31-308a C.G.S. benefits.

In his Finding of Denial of August 2, 2006 the trial commissioner concluded that “the claimant does not qualify for an additional 15.08 weeks of discretionary C.G.S. 31-308a benefits because he refused the light duty work provided in accordance with the physical restrictions given by Dr. Daigneault.” Findings, ¶ L. The claimant sought a Motion to Correct, which was denied, and then appealed to this board, alleging the trial commissioner erred in his denial of § 31-308a C.G.S. benefits. The relevant statute reads in part,

In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability 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 such injured employee prior to his injury, . . . Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state. (Emphasis added)

As a result, the statute in question places great discretion in the trial commissioner to determine whether a claimant should receive additional compensation. There is one firm requirement. The claimant cannot receive this benefit unless he satisfies the “willing and able to work” criteria in the statute. The claimant has appealed based on his belief that the trial commissioner improperly determined the claimant’s failure to perform light duty work in 2004 should govern the claimant’s situation in 2005 and 2006, and that he actually fulfilled the “willing and able to work” criteria. The claimant also asserts that the respondent’s payment of some § 31-308a C.G.S. benefits constitutes an estoppel against any defense to paying the maximum amount of such benefits which can be awarded. We find neither argument persuasive.

The claimant’s appeal argues that the trial commissioner in this case committed a reversible abuse of discretion. In Testone v. C.R. Gibson Company, 5045 CRB-5-06-1 (May 30, 2007), we outlined our deferential scope of review to the discretionary acts of a trial commissioner. ‘“As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.’ Daniels v. Alander, 268 Conn. 320, 330 (2004).” We have also cited the Appellate Court in regards to the standard for “abuse of discretion.” “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).” McCarthy v. Hartford Hospital, 5079 CRB-1-06-3 (March 8, 2007).

The claimant argues that his condition deteriorated after his failure to perform light duty work in 2004. He also argues that he did perform job searches demonstrating his willingness to work. The respondents point to evidence before the trial commissioner that at a prior informal hearing held August 18, 2005 before Commissioner Marcarelli, the award of the original 13 weeks of § 31-308a C.G.S. benefits was contemporaneous with a direction from the commissioner to engage in vocational rehabilitation. The record reflects the claimant only visited the vocational rehabilitation office once. Transcript, pp. 21-22, 31-32. The record at that hearing also reflects that the treating physician at the time was recommending additional surgery, which was opposed by the claimant.1

The respondents also argue that the job searches performed by the claimant were for jobs he was unlikely to be hired for due to his physical restrictions. As a result the claimant’s argument that Richardson v. BIC Corporation, 4413 CRB-3-01-7 (August 5, 2002) mandates reversal of the trial commissioner in this case is unpersuasive. In Richardson, supra the claimant submitted evidence of job searches and vocational retraining which persuaded the trial commissioner she had made a diligent effort to find work within her limitations. We infer that the trial commissioner in this case was not persuaded by the claimant’s efforts regarding those same issues. While the claimant argues his evidence regarding job searches was “undisputed,” in Richardson we pointed out “[t]he ‘undisputed’ facts set forth by the respondents in their brief are in fact dependent on credibility assessments, and this board cannot perform its own evaluation of comparative witness credibility on review.” Id. We must reach the same result as to the trial commissioner’s determination in this case.

The claimant also argues the format of the trial commissioner’s decision was invalid as he failed to “consider the factors enumerated in C.G.S. Section 31-308a, specifically the extent of the claimant’s injury, the training, education and experience of the Claimant, and the availability of work for persons of his physical condition and age.” We have reviewed the case law cited by the claimant for this argument. It does not compel appellate intervention in this case.

In German v. Burndy Corporation, 4007 CRB-5-99-3 (August 4, 2000) we upheld a trial commissioner who denied the claimant’s request for additional § 31-308a benefits. “The trial commissioner has discretion to determine the duration of an award under § 31-308a based upon factors such as the employee’s age, training, education, marketability, and the severity of his injury . . . . The commissioner’s conclusion regarding eligibility for benefits pursuant to § 31-308a is a factual determination which is considered discretionary.” Id. The other case cited by the claimant on this issue is also not supportive of his argument. We upheld a trial commissioner who denied additional § 31-308a benefits in Johnston v. Thames Permacrete Corp., 2278 CRB-2-95-2 (August 16, 1996) holding “[a]s a general rule, absent consideration of improper factors in decisionmaking . . . this board is extremely unlikely to find that a commissioner has abused his or her discretion in awarding or denying § 31-308a benefits.” Id. While the trial commissioner in the present case may not have engaged in a detailed written explanation in the Finding of Denial as to the statutory factors for granting an award, there is also no evidence or allegation he considered any factor not enumerated under the statute. We recently pointed out that when an award for § 31-308a C.G.S. benefits is considered on appeal, its consideration “must be considered within the totality of the evidentiary hearings. . . .” McCarthy, supra. We believe the totality of the evidence before the commissioner provided an adequate basis for the commissioner to evaluate the enumerated statutory factors as to § 31-308a C.G.S. benefits.2

The claimant finally argues that by having been granted 13 weeks of § 31-308a C.G.S. benefits following the August 18, 2005 informal hearing before Commissioner Marcarelli, that the respondent was estopped from contesting whether the claimant was “willing and able” to work. We reject this argument. Simply put, there is no evidence proffered that the respondents ever recanted their position on this issue, nor any factual finding on the record by the trial commissioner on this issue. It is apparent that the 2005 order was a compromise wherein the claimant was awarded benefits for a limited period while being directed to obtain vocational rehabilitation during this period. The claimant’s reliance on Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180 (1923) is misplaced. The Hayden case stands for the proposition that a party who negligently waives their rights cannot assert them again at a later date. Id., 186-187. There is no evidence the respondents acted negligently herein.

We also reject the argument advanced by the claimant that unless he received notice as to the termination of § 31-308a C.G.S. benefits, that they were to be continued until he received the maximum permissible award. Commissioner Marcarelli clearly granted the benefits awarded in 2005 for a specific limited duration, and to now assert a right to their continuance is at odds with the concept of such a limited duration. See Claimant’s Exhibit K. As the Appellate Court held in Hicks v. Department of Administrative Services, 21 Conn. App. 464 (1990) “[b]ecause no ongoing compensation was being paid, no written approval of discontinuance was required.” Id., 466. As a result the claimant’s “waiver” argument is without merit.

In reviewing the totality of the claimant’s arguments, it appears the claimant may believe, erroneously, that trial commissioner and/or the respondents bear the burden of proof and bear the legal obligation to justify their denial of benefits when a claimant seeks § 31-308a C.G.S. benefits. While the claimant has an undeniable right to due process, he also bears the burden of proving to the trial commissioner that he should be awarded these benefits. The claimant has cited Kulhawik v. Ace Beauty Supply, 2116 CRB-2-94-8 (February 1, 1996) in arguing his case; which is precedent which we actually find decisively supports the trial commissioner’s decision. In Kulhawik we held “[t]he claimant has the burden of persuading the commissioner to make an award, and he was not able to do so here.” Id. In this case the claimant failed in his burden to persuade the trial commissioner to award a discretionary benefit.3 We are compelled to uphold the trial commissioner and dismiss this appeal.

Commissioners Amado J. Vargas and Nancy E. Salerno concur in this opinion.

1 A commissioner may consider a claimant’s failure to obtain recommended treatment as grounds not to award § 31-308a benefits. “Section 31-294e states that ‘[i]f it appears to the commissioner that an injured employee has refused to accept and failed to obtain reasonable medical and surgical aid or hospital and nursing service, all rights of compensation under the provisions of this chapter shall be suspended during such refusal and failure.” Barnett v. Harborview Manor, 3189 CRB-3-95-10 (February 27, 1997). Whether such a refusal is reasonable is a question of fact for the trial commissioner to resolve. O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006). BACK TO TEXT

2 The trial commissioner based his conclusion primarily on the claimant’s inability to perform the proffered light duty work. As being “willing and able” to work is a statutory requirement for § 31-308a benefits, we believe failure to perform light duty work is probative evidence as to whether these benefits could have been awarded. See Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6 and 4948 CRB-2-05-5 (July 26, 2006) (termination from light duty job barred temporary partial benefits). BACK TO TEXT

3 As the claimant’s Motion to Correct sought primarily to substitute his view of the facts presented for that of the trial commissioner, we find no error in its denial. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006). BACK TO TEXT

Workers’ Compensation Commission

Page last revised: August 13, 2007

Page URL: http://wcc.state.ct.us/crb/2007/5123crb.htm

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