CRB Case Annotations re: Section 31-308(a)

See, Laneve-Annino, § 31-301. Factual findings (evidence supported denial of temporary partial disability award). See also, Laneve-Annino, § 31-308a.

Fact that doctor’s reports discussing claimant’s symptoms were prepared one or two months following three-month period of § 31-308(a) award did not render them irrelevant. Evidence indicated that diminished work hours were due to physical limitations discussed in doctor’s reports. See, Fox, § 31-294d, § 31-301. Factual findings, § 31-308a.

Though basis of claimant’s physical disability and her need for surgery were clear from evidence, trier did not make findings regarding “ready and willing to work” requirement of statute, nor did he determine claimant’s earning capacity during 28-month stretch of temporary partial disability. CRB remanded case for trier to rule on whether claimant would have been able to find light duty employment had she been ready and willing to work, or in alternative, extent of claimant’s earning capacity. See, Richardson, § 31-308a.

Trier denied § 31-308(a) benefits where he found that the claimant would be entitled to $17,317.08 in benefits (based upon his reduced earnings from the respondent employer) but where he made more than $17,317.08 working for his privately owned business. Claimant had been a truck driver, but light duty restrictions included no driving and no heavy lifting; during “light duty” period, claimant commenced working at his own ice-cream business. Board explained that trier incorrectly used earnings from privately owned business to “offset” § 31-308(a) benefits. Rather, if the claimant’s compensable injury caused him to be partially disabled, so that he could not perform his customary work, and if he meets the statutory criteria of § 31-308(a), he may be entitled to a wage differential based upon 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” and the amount he is able to earn (including his earnings at his privately owned business) following his injury.

Board found no error in trial commissioner’s award of ongoing temporary partial disability benefits. Board adopted reasoning set forth in Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998) and Morris v. A & A Acoustics, 3429 CRB-7-96-9 (Aug. 8, 1997), where board concluded that the Appellate Court’s decision in Cummings v. Twin Tool Manufacturing Company, Inc., 40 Conn. App. 36 (1996) did not take away the discretion of a trial commissioner to award continuing temporary total disability benefits. See, Brinson, § 31-296, 31-301-4.

Board affirmed trier’s award of four weeks of temporary partial benefits limited to those weeks for which the claimant had documented a work search. Claimant argued that § 31-308(a) does not require a work search. Board affirmed, explaining that it was within the discretion of the trier to require a work search, especially where, as here, the claimant’s credibility was at issue. See, LaPierre, § 31-296 and 31-307.

Board affirmed the trial commissioner’s decision denying § 31-308(a) benefits where the claimant’s testimony regarding job searches was not credible. Also, board explained that it is the claimant’s burden to prove, and not the respondents’ burden to disprove, eligibility for § 31-308(a) benefits. See also, Baldino, § 31-298.

Trial commissioner found that claimant was able to care for his son on a daily basis, and thus awarded § 31-308(a) benefits based upon an ability to work as a day care provider 30 hours per week. Claimant had suffered injuries to his arms and suffered from severe pain. Board explained that there was no evidence in the record regarding the duties required to be employable as a day care provider, such as the opinion of a vocational expert, and thus board remanded issue to the trial commissioner.

CRB affirmed trial commissioner’s adoption of temporary partial disability benefit calculation method advocated by claimant. Trier ruled that benefit rate should be 75% of difference between wages earned by employee in comparable position (including overtime) and amount earned by claimant after injury, without reducing either part of the mathematical equation by a maximum compensation rate prior to arrival at a differential amount. Respondent failed to establish that the reference to § 31-310 C.G.S. and its wage tables required the trier to rely exclusively on those tables in this situation. Also cited at Pellegren, § 31-310.

CRB affirmed trier’s finding that claimant was temporarily partially disabled during period between release for light duty work and surgery eight months later. No error in accepting claimant’s explanation that he did not record results of job searches because insurance adjuster told him that his weekly benefits were being converted from temporary total disability to permanent partial impairment payments. Claimant’s testimony that he briefly pursued two independent business ventures, neither of which provided him with any remuneration, did not require inference that claimant was not properly available to work. See also, Ford, § 31-294d, § 31-301. Factual findings, § 31-308(b).

Trier granted a set of Forms 36 filed by respondent, who sought to discontinue claimant’s benefits. Trier declared that sums paid were in nature of temporary partial disability benefits, and made Forms 36 effective over six months after they were filed. CRB reversed award and remanded case for articulation, as claimant apparently had been found to have a work capacity at the time the first Form 36 was filed. Findings did not indicate that he had demonstrated unavailability of light duty work, and it was also unclear whether trier deemed him capable of performing a “recuperative post” that his employer had made available for him. See also, Christman, § 31-301. Appeal procedure; cited at Christman, § 31-296.

CRB affirmed award of temporary partial disability benefits. Claimant’s testimony and sporadic job search efforts were sufficient to convince trier that he had made sincere efforts to find work. Statute does not require job searches, nor does it require a gap-free work search record. Trier was not bound to infer that claimant was trying to sabotage job search efforts by showing prospective employers a form detailing his work restrictions. CRB also stated that claimant was responsible for paying back unemployment benefits received concurrently with temporary partial benefits under § 31-258. Employer not entitled to offset. Rental income from the two-unit apartment house claimant owns and manages was not improperly excluded from his earnings under § 31-308(a), as it was essentially passive income, and the claimant’s management duties did not require the type of effort that would be indicative of a work capacity. See also, Rodrigues, § 31-301. Factual findings, Appeal procedure.

CRB affirmed trier’s decision in which he chose to accept some, but not all, of the opinion rendered by the § 31-294f examiner. Trier found that claimant was capable of sedentary work and thus was not totally disabled, and awarded benefits under § 31-308(a). (Delaney, C., dissenting) Insufficient findings of fact were made to support an award under § 31-308(a), specifically whether the claimant adequately pursued light duty work. Recommends remand. See also, Zito, § 31-294f.

CRB affirmed trier’s decision. Claimant’s bare assertion that he looked for work was not strong evidence, but trier had discretion to rely upon it in absence of contrary proof. No work search documentation required under § 31-308(a). See also, Mikula, § 31-307b.

Claimant’s cleaning business, which he operated as a sole proprietor outside the Workers’ Compensation Act, did not qualify as concurrent employment under § 31-310, so trier concluded that claimant’s earnings in that capacity should not be included as amounts earned under § 31-308(a). CRB reversed. Section 31-310 sets forth an “average weekly wage,” but § 31-308(a) refers only to “the amount [the claimant] is able to earn after the injury.” Statute does not limit “amounts earned” to sums derived from a qualifying employer under § 31-275(10). Where statutory language is unambiguous, CRB may not divert from its plain meaning. See also, Heene, § 31-300, § 31-310 (citation only). (Vargas, C., dissenting,) Remedial purpose of Act is inconsistent with the exclusion of concurrent employment wages under § 31-310 and simultaneous inclusion of those same wages for the purpose of § 31-308(a).

The CRB affirmed the trial commissioner’s conclusion that the claimant’s temporary total disability ceased on August 18, 1996, and that his temporary partial disability ceased on October 1, 1996. The determination of the claimant’s periods of disability was dependent upon the weight and credibility of the testimony, including medical evidence, and thus was a determination for the trial commissioner as the finder of fact. See also, Rhodes, § 31-307.

CRB affirmed denial of § 31-308(a) benefits where claimant voluntarily retired at age sixty, did not conduct any job searches, and testified that he did not intend to work.

Where trial commissioner found that claimant’s light duty employment with respondent was terminated for cause, trier was within her discretion in declining to award compensation under § 31-308(a) for temporary partial disability. Wages offered during light duty employment are taken as claimant’s earning capacity under the statute, and trier is entitled to construe termination for cause as tantamount to a refusal to perform suitable light duty work. See also, Levey, § 31-301. Appeal procedure.

CRB affirmed trial commissioner’s denial of § 31-308(a) benefits where trial commissioner found that claimant retired for reasons other than his compensable injury and did not search for other work. See also, Bilotta, § 31-308(b) (c).

The CRB affirmed the trial commissioner’s award of § 31-308(a) benefits where claimant was released to light duty, but was not able to perform the light duty position offered by the employer.

Record supported commissioner’s award of § 31-308(a) benefits to claimant. CRB rejected respondent’s claim that trial commissioner was really awarding § 31-308a discretionary benefits, but failed to make a clear distinction. See also, Anglero, § 31-300.

Trial commissioner’s denial of § 31-308(a) benefits affirmed by CRB. See also, Degiacomo § 31-307, § 31-308a.

The trial commissioner found that, due to compensable bilateral carpal tunnel, the claimant, a dental hygienist, was not able to work her normal schedule of four days per week. The claimant returned to work with the employer within her physician’s medical restrictions. The trial commissioner thus awarded the claimant benefits pursuant to § 31-308(a) due to the reduction in wages caused by her compensable injury. CRB affirmed.

Claimant who did not seek light duty work, but had a light duty capacity, was denied § 31-308(a) benefits. CRB held trial commissioner entitled to surmise from failure to seek work that claimant had not proven entitlement to benefits. But see, Shimko v. Ferro Corp., 40 Conn. App. 409 (1996). See also, Eligio, § 31-301. Appeal procedure.

With respect to claimant’s alleged back injury, CRB affirmed commissioner’s finding that claimant failed to sustain her burden of proof on causation. With respect to accepted neck injury, commissioner’s (corrected) conclusion that claimant was not entitled to temporary partial disability benefits was reversed due to inconsistent findings, and remanded.

The claimant sustained injuries to his lungs caused by the inhalation of chemicals, which caused the claimant’s lungs to become sensitized, but which did not cause any permanent impairment. The commissioner did not award benefits pursuant to § 31-308(a) because he concluded that the claimant voluntarily left a suitable position for a lower paying position. CRB affirmed the denial of § 31-308(a).

Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995).

See, Webb, § 31-301. Factual findings. Section 31-308(d) discretionary award also implicated.

Dextraze v. Lydall, Inc., 14 Conn. Workers’ Comp. Rev. Op. 52, 1615 CRB-2-92-12 (May 10, 1995).

Evidence shows claimant sought suitable light duty work with employer and was refused. Additionally, claimant attempted to find work elsewhere without success before applying for social security retirement benefits. The filing for social security retirement benefits in and of itself does not mean claimant no longer intended to work. Trier’s award of partial wage loss benefits proper. Respondents claim of surprise of trier’s award of § 31-308(a) and § 31-308a benefits due to lack of notice that these issues would be considered at proceeding below unavailing where evidentiary proceedings stretched over six hearing dates in three years and evidentiary testimony indicates partial wage loss benefits were discussed. See also, Dextraze, § 31-308(b) (c), and § 31-310.

See, Angell, § 31-308(b).

Whether claimant satisfies criteria for entitlement to full weekly compensation is a factual issue to be decided by the commissioner. Evidence regarding duplicated job searches, limited search efforts supported decision of commissioner limiting temporary partial disability benefits. See also, Wright, § 31-301. Appeal procedure.

Shimko v. Ferro Corp., 13 Conn. Workers’ Comp. Rev. Op. 255, 1744 CRB-7-93-5 (April 18, 1995), rev’d, 40 Conn. App. 409 (1996).

Where commissioner found that claimant had light work capability and had not pursued it, and that finding was supported by evidence, commissioner was not required to award § 31-308(a) benefits. Appellate Court reversed, noting there were insufficient facts to determine whether other suitable work was available. Further, statute does not require as a condition of receiving benefits that claimant prove he sought light work. See also, Shimko, § 31-284b, and § 31-308(b) (c).

Claimant not entitled to full weekly compensation, as claimant did obtain other work during seventeen weeks of thirty-month disability period on which determination of earning capacity could properly be based. See also, Tyc, § 31-300 and subsequent decision, Tyc v. Calabrese Construction Co., 3061 CRB-5-95-5 (December 10, 1996), § 31-310.

Sharp v. James Wright Precision, 12 Conn. Workers’ Comp. Rev. Op. 293, 1596 CRB-2-92-12 (June 8, 1994).

Claimant’s disability due to work related contact dermatitis did not prevent claimant from securing suitable work which did not involve contact with chemical irritants. See, Ferrara v. Clifton Wright Hat Co., 125 Conn. 140 (1939).

Besade v. Interstate Security Services, 12 Conn. Workers’ Comp. Rev. Op. 103, 1383 CRB-2-92-2 (February 28, 1994), aff’d, 37 Conn. App. 903 (1995).

Evidence supports trier’s holding that claimant sustained a wage difference as her employment activities were within the limits of her physical capabilities. However, claimant failed to provide evidence to support a finding for an increase in calculating her average weekly wage based on the percentage increase in the average production wage. See also, Besade, § 31-301. Factual findings and § 31-298.

Petta v. Waterbury Hospital, 11 Conn. Workers’ Comp. Rev. Op. 161, 1310 CRD-5-91-9 (August 23, 1993).

Wage differential should be calculated on the basis of claimant’s weekly earnings not on an hourly basis. See also, Petta, § 31-298, § 31-299b, § 31-300 and § 31-301. Appeal procedure.

Krouse v. Holmgren Subaru, 11 Conn. Workers’ Comp. Rev. Op. 37, 1251 CRD-2-91-6 (February 26, 1993).

Remanded where trial commissioner denied claimant, a car salesman, now employed as a security guard, partial wage loss benefits based on evidence before him. See also, Krouse, § 31-301-9. Additional evidence.

Brunet v. UNC/Aerospace Norwich Division, 10 Conn. Workers’ Comp. Rev. Op. 221, 1204 CRD-2-91-3 (December 17, 1992).

Remanded as evidence fails to support trier’s conclusion claimant was partially disabled due to job related stress during period following total disability. Evidence demonstrated treating physician returned claimant to work with no restrictions and merely expressed the hope that job stress could be reduced.

Miner v. Watertown, 10 Conn. Workers’ Comp. Rev. Op. 100, 971 CRD-5-90-1 (April 28, 1992).

Trier’s finding contingent upon claimant showing a wage loss existed as a result of his light duty status. See also, Miner, § 31-300, § 31-301. Factual findings and § 31-308(b).

Hansen v. Robert Gordon, D.D.S., 8 Conn. Workers’ Comp. Rev. Op. 181, 856 CRD-1-89-4 (December 14, 1990), aff’d, 221 Conn. 29 (1992).

Claimant suffered a compensable partial incapacity as a result of contracting Hepatitis Type B. See also, Hansen, § 31-275(15).

Gordon v. St. Vincent’s Medical Center, 8 Conn. Workers’ Comp. Rev. Op. 22, 758 CRD-4-88-8 (January 18, 1990).

Trier’s determination claimant failed to satisfy necessary statutory elements in her job search efforts will not be disturbed.

Donovan v. United Technologies Corp., 7 Conn. Workers’ Comp. Rev. Op. 5, 632 CRD-4-87 (June 9, 1989).

Employer is not liable for wage differential of lower paying position when a position of pay equal to previous job was refused.

Zipoli v. Watertown Board of Education, 6 Conn. Workers’ Comp. Rev. Op. 158, 679 CRD-5-88-1 (June 1, 1989).

Remanded. Finding lacked subordinate facts to support commissioner’s calculation of § 31-308(a) benefits.

Foss v. Continental Forest Industries, 5 Conn. Workers’ Comp. Rev. Op. 1, 341 CRD-6-84 (March 9, 1988).

If payments were paid pursuant to § 31-308(a) claimant must reimburse unemployment compensation fund under § 31-258.

Fortin v. State, 2 Conn. Workers’ Comp. Rev. Op. 116, 138 CRD-6-82 (January 14, 1985).

Nurse who was attending college full-time to develop skills because she was no longer able to engage in same employment after injury held entitled to half of full pay.

Reiske v. State, 2 Conn. Workers’ Comp. Rev. Op. 84, 128 CRD-4-82 (July 27, 1984).

Claimant awarded compensation at full rate under § 31-308 for period during which she was unable to find appropriate work in the labor area surrounding her home.

Donahue v. Milford, 1 Conn. Workers’ Comp. Rev. Op. 200, 92 CRD-3-81 (November 1, 1982).

Awards under § 31-308 for partial incapacity do not include dependency allowance or cost of living adjustment.

Spaulding v. Thames Valley Steel Corp., 1 Conn. Workers’ Comp. Rev. Op. 39, 3 CRD-2-79 (June 3, 1981).

Claimant to be eligible for compensation need not meet conditions where exceptions are met.