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Gelinas v. P & M Mason Contractors, Inc.

CASE NO. 5567 CRB-8-10-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 7, 2011

ROBERT J. GELINAS

CLAIMANT-APPELLANT

v.

P & M MASON CONTRACTORS, INC.

EMPLOYER

and

PEERLESS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert S. Kolesnik, Sr., Esq., Kolesnik & Norris, 80 Central Avenue, Waterbury, CT 06702.

The respondents were represented by Melissa A. Murello, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the June 7, 2010 Finding and Award/Dismissal of the Commissioner acting for the Fifth District was heard December 17, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jack R. Goldberg and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant herein appeals from a Finding and Award/Dismissal of his claim for § 31-308(a) C.G.S. benefits. He claims that the evidence on the record would have supported an award of such benefits for the entire period following his separation from employment from the respondents. He also claims that the specific award for permanent partial disability was insufficient and he was not adequately noticed that this would be an issue considered at the formal hearing. We are not persuaded that the trial commissioner erred in his determination of these issues. We affirm the trial commissioner and dismiss this appeal.

The trial commissioner found the following facts at the conclusion of the formal hearing. He took notice that it was undisputed that the claimant had suffered a compensable injury on May 14, 2003 when he fell off scaffolding in the employ of the respondent, P & M Mason Contractors (“P & M”). The commissioner found the hearing had been noticed to consider medical treatment, permanent partial disability benefits and total incapacity benefits. The parties waived notice in order to consider pre-specific § 31-308(a) temporary partial disability benefits and post-specific § 31-308a disability benefits. The trial commissioner found the claimant reached maximum medical improvement on March 9, 2005.

The claimant testified as to the circumstances of his injury and the situation following the accident. He testified that following his fall off scaffolding he returned to work in a light-duty capacity and continued in that capacity until August 14, 2003. On that day the firm’s owner, Sebby Massi, returned from Italy and went to the firm’s worksite, wherein he told the claimant there was no light-duty work available. The claimant then went to the respondent’s office in Plainville and told Michael Massi, Sebby Massi’s son, he was not physically capable of full-duty work and was leaving the firm. Michael Massi and his brother Paul Massi had run the firm in the fathers’ absence and had provided light-duty work to the claimant. The claimant never returned to work with the respondent and was never offered work after that date. The claimant attended Naugatuck Valley Community College for an environmental science program but dropped out after one semester due to lack of funds. His treating physician, Alan Waitze, M.D., had given him a thirty pound lifting restriction at the time.

After dropping out of college the claimant testified that he searched for jobs by checking the newspaper and asking friends and colleagues. He remained unemployed until finding work at L.I.S.A. Inc., also known as Beacon House, a school for “underprivileged females.” He was employed at Beacon House from August 2005 to April 2006 doing light-duty maintenance which required no heavy lifting. He was employed 25 hours per week at a rate of fifteen dollars ($15.00) per hour. He lost his Beacon House job following a DUI arrest. At that time he was living with his mother rent-free and helping to care for her as she had the onset of Alzheimer’s disease. He began caring for his mother in March of 2005 and did so until she passed away in 2008. His assistance attending to her personal needs prevented him from obtaining a job during that period. He started looking for work again but was not successful. He did not keep records of his job search. The claimant testified he had been scheduled for two Functional Capacity Examinations (FCE’s) by the respondents and had missed both. He said he missed the first FCE as he was detained in a police traffic stop and had missed the second FCE as he had forgotten the date. He also testified he did not agree with the 10% permanent partial disability rating reached by the treating physician, believing his level of disability to be greater.

The trial commissioner also considered testimony of Michael Massi. He said that he had been Vice President of P & M for 12 years and at the time of the accident the firms’ principals were Paul Massi, his brother and Gloria Massi, his mother. He said he understood the claimant left the firm to pursue another career because his back was bothering him. He said Gloria Massi kept the firm’s wage records and they stated that Mr. Gelinas was “terminated” during the week ending August 16, 2003, but use of the word “terminated” did not state whether the claimant voluntarily quit or was fired. Paul Massi also testified that light-duty work was available for the claimant in August 2003. The trial commissioner noted that the claimant’s treating physician, Dr. Waitze, had given the claimant a 10% permanent partial disability rating of the lumbar spine. The commissioner also noted that Sebby Massi was deceased prior to the formal hearing and therefore unable to testify.

Based on this testimony the trial commissioner concluded the claimant sustained a compensable injury on May 14, 2003, returned to work about a week later, and continued to work at P & M until August 14, 2003. On that date Sebby Massi told the claimant light-duty work was no longer available and he would have to work full-duty. The claimant was unable to work full-duty as a result of his physical restrictions and was constructively discharged on or about August 14, 2003, although light-duty work was available. While the claimant was eligible to apply for § 31-308(a) C.G.S. temporary partial benefits for the period of August 15, 2003 through March 8, 2005, the trial commissioner found, with the exception of his tenure working at Beacon House, the claimant did not offer credible and persuasive evidence he was willing and able to work during that period. The trial commissioner found that the claimant had a 10% permanent partial disability rating to his lumbar spine, as no evidence was presented contesting Dr. Waitze’s opinion. The trial commission, however, noted that the claimant was contesting the permanency rating by his own physician, and therefore, deemed an award of benefits pursuant to § 31-308a C.G.S. “not ripe.”

The trial commissioner ordered the respondents to pay the claimant § 31-308(a) C.G.S. benefits for the period he worked at Beacon House and to pay a permanent partial disability award for 10% of the lumbar spine. The § 31-308a C.G.S. claim was dismissed without prejudice. The claimant filed a Motion to Correct, which was denied. He has now pursued an appeal to this tribunal and has also filed a Motion To Submit Additional Evidence before this panel. The gravamen of his appeal is that the claimant did meet the requirements of § 31-308(a) C.G.S. benefits in that he was denied light-duty work by the respondent and was at all times willing and able to work within his restrictions. He also challenges the award of 10% permanent partial disability benefits as being insufficient.

We first address the issue of the Motion To Submit Additional Evidence. The claimant had the evidentiary burden of proving his case to obtain temporary partial disability benefits. Having been unsuccessful in presenting his case, he may not now revisit the same issues seeking to proffer evidence which was available prior to trial. We restated this position in Goulbourne v. State/Department of Correction, 5461 CRB-1-09-5 (May 12, 2010).

“A party to a compensation case is not entitled to try his case piecemeal, to present a part of the evidence reasonably available to him and then, if he loses, have a rehearing to offer testimony he might as well have presented at the original hearing.” Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 273-274 (1948), citing Kearns v. Torrington, 119 Conn. 522 (1935). Chief Justice Maltbie explained in Kearns the rationale behind this rule “[h]e must be assumed to be reasonably familiar with his rights and with the requisites of proof necessary to establish his claim; and to permit him intentionally to withhold proof, or to shut his eyes to the reasonably obvious sources of proof open to him; would be fair neither to the commissioner and the court nor to the defendant.” Id., at 529. We see no reason not to apply the standard for claimants enunciated by Chief Justice Maltbie against respondents before this tribunal. Indeed, we have frequently reiterated our stance against piecemeal litigation. See Gibson v. State/Department of Developmental Services-North Region, 5422 CRB-2-09-2 (January 13, 2010); Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001) and Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005). Id.

In considering this Motion we are not persuaded that the evidence the claimant seeks to present was unavailable to him at the time of the formal hearing. Therefore, for the reasons we stated in Gibson v. State/Department of Developmental Services-North Region, 5422 CRB-2-09-2 (January 13, 2010) and Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007) we deny the claimant’s Motion.

The claimant also asserted at oral argument before this tribunal that the conduct of the formal hearing violated due process as counsel was not sufficiently on notice that various issues would be considered when the hearing convened on February 4, 2010. The notice of the formal hearing, dated January 11, 2010, indicated that the hearing would address issues related to § 31-294d C.G.S., § 31-307 C.G.S., and § 31-308(d) C.G.S. The trial commissioner later determined the parties chose to waive notice for those issues. February 4, 2010 Transcript, pp. 15-16. Upon the commencement of the hearing counsel for the claimant sought to add consideration of temporary partial benefits and post-specific 308a benefits. February 4, 2010 Transcript, p. 8. While claimant’s counsel asked not to have the issue of a permanency rating considered at the formal hearing, counsel for the respondents asked the trial commissioner to proceed on this issue, noting it had been noticed for the present hearing and had been noticed previously on multiple occasions. February 4, 2010 Transcript, pp. 9-15. The trial commissioner noted the claimant had never sought an opinion on this issue other than the opinion of Dr. Waitze and decided to go forward on the issue of permanency, February 4, 2010 Transcript, p. 15. Counsel for the claimant did not seek a continuance on this issue to obtain an additional medical opinion and did not object at that point to the trial commissioner proceeding to render a decision. We find the precedent in Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009) on point. The parties to these proceedings were adequately apprised of the issues under consideration by the trial commissioner and any argument to the contrary is unmeritorious.

We turn to the gravamen of the claimant’s appeal, which is that he provided “unrebutted, clear and convincing evidence that he was ready, willing and able to work within his restrictions.” Claimant’s Brief, p. 4. As the claimant views this case, his testimony established he met the standards delineated in Mikula v. First National Supermarkets, Inc., 3754 CRB-3-97-12 (May 11, 1999), aff’d, 60 Conn. App. 592, (2000) for an award under § 31-308(a) C.G.S. We are not persuaded, however, that the trial commissioner’s ruling against the claimant was in error.

We agree with the claimant that Mikula, supra, is the proper standard to determine whether an injured worker qualifies for § 31-308(a) C.G.S. benefits. We cited Mikula as binding authority in Fountain v. Coca Cola Bottling Company, 5328 CRB-1-08-3 (February 18, 2009).

In Sellers v. Sellers Garage, 80 Conn. App. 15 (2003), the Appellate Court outlined the standard for awarding a full partial disability award, “[t]o receive full compensation for partial disability under § 31-308(a), a plaintiff must satisfy the following three-pronged test: (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 . . . .” (Internal quotation marks omitted.) Mikula v. First National Supermarkets, Inc., 60 Conn. App. 592, 598, (2000), Sellers, supra, at pp. 20-21.

Fountain, supra.

We note that in this case as in Fountain the trial commissioner’s decision turned on whether he believed the claimant had made sufficient efforts to find work within his restrictions. The trial commissioner in Fountain determined the claimant had presented “extensive documentation as to actually conducting a job search.” Id.1 In the present case, the claimant’s evidence was limited to his own uncorroborated testimony on that issue. In Conclusion, ¶ H, the trial commissioner in the present case determined, that with the exception of the period in which the claimant worked at Beacon House “the claimant provided no credible or persuasive evidence that he was ready and willing to work within his restrictions prior to reaching MMI.” This is a factual determination which hinged on whether the claimant’s testimony was credible and persuasive. A trial commissioner may determine that unrebutted testimony is unpersuasive, and as an appellate panel we must respect this determination. Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006).2

The claimant’s counsel argued at oral argument that the trial commissioner should not have allowed evidence to be presented as to the circumstances in which the claimant was terminated from Beacon House, as it was prejudicial in nature. See Finding, ¶ 3. We disagree that the claimant was prejudiced by this issue. Issues as to evidentiary relevance are generally within the trial commissioner’s discretion. Valiante, supra. In addition, this panel has consistently stated that a trial commissioner may determine that a “for cause” termination from light-duty work can be deemed to be tantamount to a refusal to perform such work. Levey v. Farrel Corp., 3649 CRB-4-97-7 (July 30, 1998). The trial commissioner could reasonably consider the circumstances as to the claimant’s termination from Beacon House in determining whether he continued to be eligible for § 31-308(a) C.G.S. benefits.

Finally we address other ancillary issues. The claimant’s counsel argued at oral argument that the award of a 10% permanent partial disability rating to the claimant for his lumbar spine was inadequate. The claimant did not brief this issue, and upon review we find no other competent medical evidence was presented to the trial commissioner on this issue other than the report from Dr. Waitze establishing a 10% rating. Pursuant to DiNuzzo v. Dan Perkins Chevrolet Geo, 294 Conn. 132 (2009) a trial commissioner must rely on competent evidence on such issues. See also Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142 (1972). The trial commissioner did not err by reliance on the sole expert opinion in the record regarding the claimant’s impairment.

The claimant did brief the issue as to whether a penalty should be assessed against the respondent P & M under § 31-313 C.G.S. However, the claimant did not include a prayer for such relief in his Proposed Findings of Fact submitted to the trial commissioner on April 20, 2010, nor was the issue included in the claimant’s Reasons for Appeal. We find there is an inadequate record to perform appellate review on this issue. We also find an inadequate basis for this panel to consider the question raised as to the trial commissioner’s decision to defer a decision on the claimant’s eligibility for § 31-308a C.G.S. benefits; this issue was neither raised in the Reasons for Appeal nor briefed by the parties. As the issue was “dismissed without prejudice” Order, ¶ IV, the parties should present this issue to the trial commissioner to reach a final determination.

It is the claimant’s burden to prove eligibility for § 31-308(a) C.G.S. benefits. The claimant did not persuade the trial commissioner he was actively seeking employment during the periods he was not awarded benefits. We find no legal error in how the trial commissioner decided this quintessentially factual issue. As a result, we affirm the Finding and Award/Dismissal and dismiss this appeal.

Commissioners Jack R. Goldberg and Stephen B. Delaney concur in this opinion.

1 The claimant argues in his brief that the claimant in Mikula v. First National Supermarkets, Inc., 3754 CRB-03-97-12 (May 11, 1999), aff’d, 60 Conn. App. 592 (2000), prevailed based on his own testimony and without presenting documentary evidence as to his job searches. Claimant’s Brief, pp.13-15. We determined that in Mikula the trial commissioner found the claimant credible. Id. The trial commissioner in this matter did not find the claimant’s testimony credible or persuasive on this issue. This matter is thus consistent with Baldino v. Charles Corcoran d/b/a Corcoran & Son Landscaping & Paving, 4275 CRB-4-00-8 (July 23, 2001) where “the trial commissioner found that the claimant did not present credible testimony regarding his job search efforts.” Id. While the claimant believes unrebutted evidence is sufficient to prevail on this issue, “...it is the claimant’s burden to prove, and not the respondents’ burden to disprove, the claimant’s eligibility for § 31-308(a) benefits.” Id. BACK TO TEXT

2 The claimant sought in his Motion to Correct to cause the trial commissioner to find the claimant was not caring for his mother during the dates in which he claimed he was seeking light duty work. The trial commissioner denied this request. We must conclude he did not find this corrected testimony persuasive, Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003), and therefore could properly deny the Motion. BACK TO TEXT

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