State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Nalysnyk v. Slawomir Deja d/b/a Deja Construction et al.

CASE NO. 5528 CRB-2-10-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 4, 2011

WLODZIMIERZ NALYSNY

CLAIMANT-APPELLE

v.

SLAWOMIR DEJA d/b/a DEJA CONSTRUCTION

NO RECORD OF INSURANCE

EMPLOYER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

and

HANNA DEJA d/b/a HANNA HOME IMPROVEMENT

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY, AS SERVICING CARRIER FOR THE HARTFORD

INSURER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Richard H. Greene, Esq., Law Office of Richard H. Greene, 431 Howe Avenue, Shelton, CT 06484.

Slawomir Deja d/b/a Deja Construction was unrepresented.

The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

No appearance was made by or on behalf of Respondent Hanna Deja d/b/a Hanna Home Improvement or Travelers Property & Casualty as the servicing carrier for The Hartford. Hanna Deja d/b/a Hanna Home Improvements and The Hartford were dismissed from this matter by the trial commissioner.

This Petition for Review from the January 19, 2010 Finding and Award of the Commissioner acting for the Fourth District was heard on August 27, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Peter C. Mlynarczyk.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. Respondent Second Injury Fund has petitioned for review from the January 19, 2010 Finding and Award of the Commissioner acting for the Fourth District. We find error and accordingly affirm in part and remand in part the decision of the trial commissioner.

The trier made the following factual findings which are pertinent to our review. The claimant testified that he was employed by Slawomir Deja, d/b/a Deja Construction, as a carpenter’s helper to assist Deja at a construction site located at 34 Glenwood Avenue in New London, Connecticut. The claimant indicated that he worked at the site from October 14, 2007 to October 19, 2007 and on October 22, 2007 and Deja provided transportation for the claimant to and from the site. The claimant indicated that it was his understanding that he was to be paid $20.00 an hour and that he earned $1,050.00 during the week he worked for Deja. The claimant testified that on October 22, 2007, after cutting pieces of lumber and carrying them to Deja, he hurt his lower back and lost feeling initially in his left leg and then, later, in the right leg. The claimant testified that he told Deja he had hurt his back but Deja did nothing and both men continued to work until the end of the day.

On October 29, 2007, the claimant began treating with Myl Rama, M.D., an internist and family physician, who prescribed medication and referred the claimant to physical therapy. Claimant’s Exhibits H, I. An MRI of the lumbar spine performed on November 18, 2007 revealed a herniated disc at L2L3 along with degenerative changes at L5-S1 and L4-L5. Claimant’s Exhibit J. The claimant was referred to Kenneth Lipow, M.D., a neurosurgeon, who saw the claimant on December 6, 2007, May 20, 2008 and January 8, 2009. Claimant’s Exhibit K. On May 20, 2008, Dr. Lipow’s physician assistant issued a note totally disabling the claimant. Id. In a report dated February 16, 2009 to claimant’s counsel, Dr. Lipow stated that the claimant “has a significant lumbar strain and should avoid repetitive lifting or bending. His work capacity and performance restriction should be carrying no greater than 30 lbs. and he should not be lifting more than 20-30 lbs on a repetitive basis.” Id.

A witness, Tony DelMichi, also testified at trial and indicated that he served as an “unpaid advisor,” to Rui Meng, the owner of the Glenwood Avenue property. April 17, 2009 Transcript, p. 37. DelMichi indicated that he was responsible for allowing the contractors access to the property every morning and supervising the workers to make sure they did not smoke in the house. He also testified that no accident had occurred on the property and if something had happened, he would have known about it. DelMichi testified that the claimant called him several days after his last day of work and told him he hurt his back when he slipped in the snow and fell while coming out of church the previous Sunday.1 DelMichi stated that the claimant told him Deja owed him $1,400 and asked DelMichi to write a letter listing the days he had worked. DelMichi testified that the claimant told him what days to include in the letter and explained that he acquiesced to the claimant’s request because he was concerned that the claimant might file a complaint with the Department of Labor and then Ms. Meng or DelMichi himself might be liable for some sort of payment. DelMichi testified that although he listed Monday, October 22, 2007 in his letter of November 9, 2007, the claimant did not actually work that day. See Claimant’s Exhibit A. DelMichi also testified that he had attended several informal hearings prior to the trial and never told anyone that he had made a mistake regarding the dates in the November 9, 2007 letter.

Slawomir Deja also testified at trial, explaining that he had failed to comply with a subpoena to attend a previously-scheduled deposition because he did not understand the significance of the subpoena and his son, who serves as a translator, did not explain it to him.2 Deja indicated that the work on the Glenwood Avenue property had been subcontracted to him by his he ex-wife, Hanna Deja, who owned her own construction company. Deja stated that his exwife also gave him the claimant’s telephone number. Deja testified that he offered to provide the claimant with transportation to the job site and during their first trip, when the claimant asked about payment, he told the claimant to see what the job entailed and then let him know how much he wanted to be paid. Deja testified that he never spoke about money again with the claimant and no specific payment amount was ever agreed upon.

Deja testified that the claimant worked approximately 35 hours the week of October 15th, 2007, including a half-day on Saturday, October 20, 2007. Deja testified it was his understanding the claimant was going to let him know the following Monday whether he wanted to take the job; however, at trial he admitted that he understood that “legally [the claimant] was at work at that time.” September 11, 2009 Transcript, p. 31. He testified he was not aware that the claimant was alleging an injury occurred on October 22, 2007 and that when he went to pick the claimant up for work on that date, the claimant did not open the door or answer the telephone. Deja testified that he does not remember speaking with the claimant after October 22, 2007.

Deja testified that as of October 22, 2007, he did not have workers’ compensation insurance. He also stated that Hanna Deja signed the Form 43 dated January 18, 2008 because her own construction company, Hanna Home Improvements, had workers’ compensation insurance in effect on that date.3 However, Deja testified that Hanna Home Improvements is not one of his companies and Hanna Deja had no authority to sign any documents or enter into any contracts on behalf of Deja Construction.

The trial commissioner concluded that the claimant sustained a work-related injury on October 22, 2007 while in the employment of Deja Construction and there was no workers’ compensation insurance in place on the date of the claimant’s injury.4 The trial commissioner concluded that Hanna Deja did not have legal authority to issue a Form 43 on behalf of Deja Construction given that Hanna Home Improvements had not entered into a contract with either the owner of Glenwood Avenue property or her representative and therefore had no principal employer liability relative to Deja Construction or the claimant.

The trial commissioner determined that the claimant had worked a total of 42½ hours for the week of October 15, 2007, including a halfday on Saturday, October 20, 2007, and the claimant’s pay rate was $20.00 per hour, resulting in an average weekly wage of $850.00 and a compensation rate of $486.39. The trial commissioner designated Drs. Rama and Lipow as the claimant’s treating physicians and ordered Deja to pay all reasonable medical expenses. The trial commissioner also ordered Deja to pay temporary total disability benefits from October 22, 2007 through February 15, 2009 and temporary partial disability benefits from February 16, 2009 through the date of the formal and continuing, without job searches, until a Form 36 is approved by the Workers’ Compensation Commission. The trial commissioner ordered Deja (and not the Second Injury Fund) to pay attorneys’ fees for undue delay pursuant to C.G.S. 31-300 and to reimburse Travelers Property & Casualty for the costs associated with the deposition Deja failed to attend.5 The trial commissioner advised the claimant to notify the Commission if Deja did not pay the ordered benefits within twenty days so that the trier could order the Second Injury Fund to make payment pursuant to C.G.S. 31-355 C.G.S.6

The respondent Second Injury Fund filed a Motion to Correct which was denied in its entirety, and this appeal followed. On appeal, the Fund propounds several claims of error. The Fund contends that the trial commissioner’s conclusion that the claimant sustained a compensable injury was unsupported by the medical evidence; as such, the Fund disputes the trial commissioner’s orders relative to payments for temporary total and temporary partial disability. In addition, the Fund challenges the trier’s waiver of job searches and his order that temporary partial disability benefits will continue until the approval of a Form 36. Finally, the Fund argues that the trier’s decision to deny the Motion to Correct in its entirety constituted error.

We begin with a recitation of the standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions.

[T]he role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).

The Fund has claimed as error the trier’s conclusion that the claimant sustained a compensable injury. The Fund contends that the record does not support a threshold finding by the trier that the claimant satisfactorily established a prima facie case, primarily because the record does not support the inference that a “traumatic event” occurred at the worksite and the claimant proffered no medical opinion definitively linking within reasonable medical probability the claimant’s documented injury to a workplace event. However, while we must concede that the record is devoid of a medical opinion establishing causation, we disagree with the Fund’s argument that the submission of such a medical report into evidence provides the sole means by which a claimant may establish a prima facie case.

It is of course axiomatic that in order “[t]o come within the course of employment, an injury must occur within the period of employment and at a place where the employee may be while he is reasonably fulfilling the duties of the employment.” Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999), citing McNamara v. Hamden, 176 Conn. 547, 556 (1979). It is also well-settled that “[t]he determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” Spatafore v. Yale University, 239 Conn. 408, 418 (1996). However, while a finding of an “accidental injury that may be definitely located as to the time when and the place where the accident occurred,” § 31-275(16)(A) C.G.S., is clearly one of the more direct routes by which a trier may arrive at the conclusion that a claimant has sustained a compensable injury, it is not the only path.

For instance, in Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670 (2003), our Appellate Court reviewed a matter similar to the one at bar in which the claimant brought a claim for back injuries sustained after a day of chopping and cutting wood in a steady rain. Although the claimant noted the onset of back pain on that day, he merely reported the back pain to his supervisor the following day and continued to work. When the pain worsened and the claimant sought medical assistance two days later, the physician ordered an MRI which revealed a ruptured disc. Following a trial, the respondents challenged the trier’s finding of compensability on the grounds that no “specific accidental injury” had occurred. The Appellate Court rejected the respondents’ position, stating:

Our cases do not require such absolute certainty concerning the specific moment of injury. Our Supreme Court has stated that the proof of an accidental injury that can be definitely located both as to time and place ‘does not require that the time be fixed by a stopwatch or the place by a mathematical point.’

Id., at 675, quoting, Stier v. Derby, 119 Conn. 44, 49-50 (1934).

The court also failed to countenance the respondents’ allegation that the trier had exceeded the bounds of her discretion by finding more persuasive the claimant’s testimony regarding the circumstances surrounding the claimed injury than that of the employer’s. In addition, the court disregarded the respondents’ allegation of error relative to the trier’s purported reliance on medical evidence deemed “speculative” by the defendants, stating:

[O]ur Supreme Court has held that expert medical opinion is not necessary to show the causal connection between injury and work in cases in which the commissioner could have concluded that it was more likely that an injury occurred from the type of work in which the plaintiff was engaged than from some unknown cause.

Id., at 676.

In fact, although the court recognized that the record did contain “expert medical opinion that showed a high probability of a causal connection between the plaintiff’s ruptured disc and his employment,” id, the court essentially concluded that such expert medical opinion was not vital to the legitimacy of the claim, remarking:

Only when the theory of cause and effect showing the association between injury and work involves complex medical issues outside common knowledge and ordinary human experience must the commissioner turn to expert testimony to resolve such issues and to confirm by expert opinion the association between injury and work.

Id.

Turning to the matter at bar, we note at the outset that the instant claim provides a scenario very similar to Sprague in which the claimant alleges an injury following a full day of performing the duties associated with the employment.7 As was the case in Sprague, the claimant testified extensively regarding the circumstances surrounding the injury, explaining that he was cutting and carrying pieces of lumber, some of which were located outside the property, to the employer who was working upstairs. February 24, 2009 Transcript, p. 27. The claimant also testified that he orally reported the injury to his employer on October 22, 2007 but continued working until the end of the day. Id., at 28. The claimant indicated that he did not work anywhere else in October 2007, id., at 26, and that he had never had any prior leg or back injuries. Id., at 28.

Also consistent with the factual circumstances in Sprague, the instant claimant experienced a delay in seeking medical attention as he did not consult with Dr. Rama until October 29, 2007. Claimant’s Exhibit H. Moreover, when the claimant underwent an MRI on November 18, 2007, the scan revealed a disc herniation at L2-L3 along with degenerative changes at L5-S1 and L4-5 and the claimant subsequently came under the care of a neurologist. Claimant’s Exhibit J. Finally, our review of the physical therapy records from Health South indicates that the intake note for his initial evaluation on November 2, 2007, states, “[t]he client reports injuring his lower back while working on 10/22/2007. The client reports he was working construction when he was repetitively lifting heavy wood overhead.” Claimant’s Exhibit I.

As the Fund contends, the record does not contain a medical report from Dr. Lipow or anyone else attesting to a direct causative link between the claimant’s back injury and the workplace activities of October 22, 2007. In Dr. Lipow’s correspondence of February 16, 2009, the doctor’s recitation of the history of the claim is clearly based on the claimant’s narrative, as are the intake notes provided by Health South. Nevertheless, in light of our Appellate Court’s reasoning in Sprague, supra, we are not persuaded that the trier abused his discretion in concluding that the claimant sustained a compensable injury in the absence of a definitive medical opinion as to causation. As the Sprague court observed:

It is sufficiently within common knowledge and ordinary human experience that the lifting of heavy objects, such as wood and brush soaked with water, may cause lower back injury, including a ruptured disc, and therefore it was unnecessary for the commissioner to turn to expert testimony to find that such work was the cause of the plaintiff’s injury.

Id., at 676.

Moreover, the consistent tenor of the claimant’s testimony, Form 30C and medical reports further serves to bolster the trier’s discretion in inferring the claimant sustained a compensable injury.8 We note that in its brief, the Fund decries the lack of a medical report definitively establishing causation and observes, accurately, that “[n]one of the respondents had any obligation to prove the negative; that the activities at work were not a substantial causative factor as to the injury.” Brief, p. 6. However, we would respectfully point out that in the almost year-and-one-half span between the date of injury on October 22, 2007 and the commencement of formal proceedings in this matter on February 24, 2009, none of the respondents sought clarification of the medical reports containing objective findings as to the claimant’s back injury. Moreover, none of the named respondents saw fit to obtain a Respondent’s Medical Examination. This board is not empowered to conduct a trial de novo. Anderton v. Waste Away Serv., 91 Conn. App. 345 (2005). The trier found credible the claimant’s testimony regarding the circumstances surrounding his injury and such a determination is generally not subject to reversal by an appellate body. Burton v. Mottolese, 267 Conn. 1, 40 (2003).

The Fund also contends that the trial commissioner erred in awarding temporary total disability benefits from October 22, 2007, the date of injury, through February 15, 2009, the day before Dr. Lipow’s report to claimant’s counsel wherein the doctor opined the claimant had a limited work capacity with restrictions. The Fund maintains that the medical reports do not support such an award. We disagree. First, all of the Health South records from November 2, 2007 through December 27, 2007 recite, under the section entitled “ADL/Functional Status” the following language. “Current status. Work status. Unable to work secondary to dysfunction.” Claimant’s Exhibit I. In addition, the file contains an out-of-work slip dated May 20, 2008 from Dr. Lipow’s physician’s assistant totally disabling the claimant pending a surgical consult and a note of the same date stating that there had been “no change in [the claimant’s] physical examination to date.”9 Claimant’s Exhibit K.

As discussed previously herein relative to the issue of compensability, it is the Fund’s position that the paucity of medical reports in the record should essentially preclude the trial commissioner from making findings which inure to the benefit of the claimant. We consider such an approach to be fundamentally at odds with the humanitarian and remedial purposes of the Workers’ Compensation Act, particularly in light of the respondent’s failure to procure or submit evidence in support of its contention that the claimant is not eligible for disability benefits.10 Thus, having reviewed the record in its entirety, we hold that the medical reports in this file, such as they are, do provide adequate support for the trial commissioner’s conclusions as to the claimant’s eligibility for disability payments and we will not overturn his findings on appeal. “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), citing Burton, supra, at 54.

The Fund also challenges the trier’s award of temporary partial benefits pursuant to § 31-308(a) C.G.S. on the basis that the trier did not make a determination as to the appropriate rate at which temporary partial disability benefits should be paid.11 Stefenski v. C. Raimondo & Sons, 3081 CRB-2-95-6 (January 8, 1997), we are compelled to remand this matter for a calculation of the appropriate wage rate for benefits pursuant to § 31-308(a) C.G.S.12

As a corollary to the Fund’s objection to the award of temporary partial benefits absent the proper calculations, the Fund also challenges the trier’s order to waive job searches and continue temporary partial benefits until such time as a Form 36 is approved by the Workers’ Compensation Commissioner. See Finding and Award Orders, ¶ 1. Relative to the Fund’s concerns regarding the job search waiver, we are inclined, in light of our remand on this particular issue, to strike that portion of the order to ensure that the discretion of the trial commissioner hearing the matter remains unfettered relative to the issue of whether to require job searches.13 “Although our statutes do not require a claimant to perform a work search, it has been accepted as one evidentiary basis to demonstrate willingness to work and the availability of suitable light duty employment.” LaPierre v. UTC/Pratt & Whitney, 4305 CRB-8-00-10 (October 23, 2001).

Regarding, however, the Fund’s objection to the trier ordering that § 31-308(a) benefits continue until such time as a Form 36 is approved, we must confess to being somewhat baffled at the Fund’s allegation that the trial commissioner’s language in this regard somehow constitutes a deprivation of due process. Our reading of the pertinent language in Finding and Award Orders, ¶1, suggests that the trial commissioner was simply referencing the well-settled mechanism by which ongoing payments of either temporary total or temporary partial disability benefits to a claimant are terminated.14 The utilization of the Form 36 is not dependent on whether a respondent voluntarily commenced payment or did so under an order from a trial commissioner. Similarly, the utilization of a Form 36 is certainly not dependent on whether the Fund is the payor of record or some other entity. While this board is of course cognizant of the occasionally significant delays which can occur before a § 31-355 C.G.S. order implicating the Fund is issued, we fail to comprehend how the trial commissioner’s language relative to the customary utilization of a Form 36 would affect the Fund’s administration of such claims. Accordingly, we find the Fund’s allegation of a due process deprivation without merit and decline to strike the trial commissioner’s language in this regard.

The Fund’s final claim of error concerns the trial commissioner’s failure to grant the corrections cited in their Motion to Correct. With regard to Proposed Correction #1, as discussed previously herein, we recognize that in his statement of the issues presented, the trial commissioner inadvertently referred to a fall sustained by the claimant; we have herein deemed that reference harmless scrivener’s error. See fn. 7, supra. Similarly, relative to Proposed Correction #29, our review of the phone records in evidence does not support the trier’s conclusion that the claimant placed eighteen calls to the employer after October 22, 2007 but, rather, indicates that the claimant made ten phone calls to the employer and the employer made two to the claimant.

Nevertheless, we fail to comprehend how the correction of either of these findings would significantly advance the Fund’s position. Moreover, our review of the remaining proposed corrections suggests that they primarily constitute an attempt by the Fund to recast the evidence in a light more favorable to its position. As such, we conclude the trial commissioner was under no compunction to grant the Fund’s Motion to Correct. As this board has previously observed, when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002).

Having found error, this matter is accordingly affirmed in part and remanded in part for additional proceedings consistent with this opinion.

Commissioners Ernie R. Walker and Peter C. Mlynarczyk concur.

1 At trial, the claimant denied telling DelMichi he had hurt his back coming out of church. April 17, 2009 Transcript, p. 21. BACK TO TEXT

2 Deja explained that “[m]y son received the paper that got sent before. And my son basically ignored the whole situation, ignored the letter that we have received, and he didn’t tell me any details. At that time, I was working in Greenwich and I was not able to come in. I had a driver that was not able to take me home.”. September 11, 2009 Transcript, pp. 4-5. BACK TO TEXT

3 The Form 43 (“Notice to Compensation Commissioner and Employee of Intention to Contest Employee’s Right to Compensation Benefits”) was filed in response to a Form 30C (“Notice of Claim for Compensation”) filed by the claimant on December 22, 2007. See Claimant’s Exhibits M, L. BACK TO TEXT

4 The trial commissioner’s determination that an employer/employee relationship existed between the claimant and Deja Construction is not under appeal. BACK TO TEXT

5 Section 31-300 C.G.S. (Rev. to 2007) states, in pertinent part. “In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in the award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in the award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee...” BACK TO TEXT

6 Section 31-355(b) C.G.S. (Rev. to 2007) states, in pertinent part. “When an award of compensation has been made under the provisions of this chapter against an employer who failed, neglected, refused or is unable to pay any type of benefit coming due as a consequence of such award or any adjustment in compensation required by this chapter, and whose insurer failed, neglected, refused or is unable to pay the compensation, such compensation shall be paid from the Second Injury Fund. The commissioner, on a finding of failure or inability to pay compensation, shall give notice to the Treasurer of the award, directing the Treasurer to make payment from the fund...” BACK TO TEXT

7 We note that in the first paragraph of his Finding and Award, the trial commissioner refers to “a fall” by the claimant. As the balance of the findings and legal conclusions clearly reflect the factual circumstances of the claim, we consider this reference to be harmless scrivener’s error. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933 (2003); Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). BACK TO TEXT

8 We note that the claimant’s Form 30C dated December 12, 2007 describes the injury thus. “I was lifting, moving, cutting wood, beams and plywood and hurt back and my left leg.”. Claimant’s Exhibit L. BACK TO TEXT

9 Our review of the file also indicates that the file contains a note dated November 2, 2007 in which Dr. Rama states that the claimant “has severe Back Pain and is undergoing treatments. He can’t move from his present residence at this time until further notice.”. Claimant’s Exhibit H. While the wording of this note is obviously somewhat ambiguous, it could be inferred that the doctor was in effect keeping the claimant out of work. BACK TO TEXT

10 We note that on July 8, 2010, the Fund submitted to this board a copy of Jones v. Connecticut Children’s Medical Center Faculty Practice Plan, 5420 CRB 1-09-1 (July 1, 2010) as a Citation of Supplemental Authority. While we would concur that the Jones’ respondents did indeed adduce a great deal of expert testimony in the course of defending that claim, we fail to grasp the relevance of Jones to the instant matter. BACK TO TEXT

11 The pertinent language of § 31-308(a) C.G.S. (Rev. to 2007) is as follows. “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, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the amount he is able to earn after the injury, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310...” BACK TO TEXT

12 Section 31-308(a) C.G.S. (Rev. to 2007) also provides for a claimant to receive his full weekly compensation amount as a § 31-308(a) award in situations “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...”. However, we cannot infer from the instant Finding and Award that this particular scenario was contemplated by the trial commissioner. BACK TO TEXT

13 It should be noted that the claimant testified that he began looking for work and completing job searches after Dr. Lipow issued his report of February 16, 2009. April 17, 2009 Transcript, p. 29; Claimant’s Exhibit O. At trial, the claimant indicated he had earned approximately $1,000.00 since February 16, 2009. Transcript, p. 29. BACK TO TEXT

14 Section 31-296 C.G.S. (Rev. to 2007) states, in pertinent part. “Before discontinuing or reducing payment on account of total or partial incapacity under any such agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner...” BACK TO TEXT

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