CRB Case Annotations re: Section 31-308a

CRB followed reasoning of McEnerney v. U.S. Surgical Corp., 4252 CRB-3-00-6 (Oct. 16, 2001), infra, in ruling that § 31-308a(b) did not give commissioner discretion to override durational limitation on benefits in § 31-308a(a). See, Laneve-Annino, § 31-301. Factual findings; also cited at Laneve-Annino, § 31-308(a).

See, Siebold, § 31-297 (claimant’s physical condition is necessary component of § 31-308a claim for lost earning capacity).

Claimant continued to work at prior nursing job 30 hours per week rather than 40. Trier found that she qualified for two months of benefits. CRB affirmed, as under circumstances, trier could have concluded that claimant’s performance of this job was indicative of her earning capacity. See, Fox, § 31-294d, § 31-301. Factual findings, 31-308(a).

CRB affirmed award of § 31-308a benefits, as evidence readily supported claimant’s position that light duty work offered by employer was unsuitable to her needs. CRB remanded for recalculation of wage differential award, however, as claimant was working only 16-hour weeks, but was not restricted by doctor from working longer hours at light duty job. Direct comparison between average weekly wage at time of injury and gross weekly wages from part-time light duty job is insufficient; current earning capacity must be used instead. See, Richardson, § 31-308(a).

CRB affirmed trier’s dismissal of § 31-308a claim where testimony of vocational specialist supported finding that earning capacity was not reduced by compensable injury, and trier considered factors listed in statute.

Whether a claimant meets the statutory criteria of § 31-308a is a question of fact for the trial commissioner. Here, the trier found the claimant’s evidence regarding his claim for § 31-308a benefits was not credible, and thus the board affirmed the trier’s denial of § 31-308a benefits. See, Belanger, § 31-313.

The board, pursuant to Appellate Court remand, considered claimant’s appeal from trier’s original decision and affirmed said decision which found that the claimant suffered a compensable back strain injury, but did not meet her burden of proof that she also sustained a shoulder injury or any internal/gastrointestinal or other injuries including pregnancy losses. Additionally, the board found no error in the trier’s denial of § 31-308a benefits. See Bryan, § 31-301. Factual findings. See related cases: Bryan, 3730 CRB-1-97-11 (May 7, 1999), rev’d, 62 Conn. App. 733 (2001), § 31-298. See also Bryan, 3320 CRB-1-96-4 (March 12, 1997), § 31-301-9.

Claimant would have been entitled to continued § 31-308a benefits but for fact she moved to Florida. Claimant’s unsuccessful work searches during year prior to her move did not alter applicability of statutory language. Section 31-308a(b) does not grant trier additional authority to award benefits, but instead constitutes a restriction that permits awards only where the circumstances warrant such compensation, even where claimant satisfies technical criteria of § 31-308a(a). CRB could not review constitutionality of in-state work restriction.

Trier awarded additional benefits for permanency without making necessary subordinate findings regarding diminished earning capacity. CRB remanded for articulation, as insufficient information existed for review. See, DiBello, § 31-300.

CRB affirmed trier’s inclusion of state disability retirement pension in amount claimant was “able to earn” for purpose of benefit calculation. Goal of wage replacement benefits is to replenish former income source, and claimant would be receiving more than he had prior to injury if he collected pension plus two-thirds of full difference between current earnings and wages he would have earned but for his compensable injury. Remanded because trier used net pension proceeds rather than gross pension proceeds in benefit calculation, as 1989 version of statute used pre-tax figures. Also cited at Iannarone, § 31-310, § 31-314. Prior decision at Iannarone, 4310 CRB-7-99-11 (Dec. 6, 2000), § 31-301 Appeal procedure.

The respondents appealed the trial commissioner’s award of § 31-308a C.G.S. benefits on the basis that the claimant had not searched for work. The CRB explained that for injuries occurring prior to July 1, 1993 (the effective date of Public Act 93-228), the statute does not specifically require the claimant to seek work, and a job search is not the only evidentiary means by which a commissioner may determine that a claimant qualifies for a discretionary award of benefits. The CRB affirmed the award of benefits.

Commissioner not required to address issue of § 31-308a benefits on remand where no permanency was awarded. See also, Mahoney, § 31-308(b). Prior decision in Mahoney, 16 Conn. Workers’ Comp. Rev. Op. 17, 3025 CRB-4-95-3 (October 4, 1996), § 31-294d, § 31-298.

Claimant argued that trier erred in denying further § 31-308a benefits without finding that his injury had changed, and without finding that suitable work was available for him. CRB found no merit to these arguments, as § 31-308a benefits are discretionary in nature, and the trier properly considered the statutory factors, including the employee’s training, education, marketability, and the severity of his injury. Claimant sustained a 15% permanent partial disability of the back, and was able to perform numerous activities. The trial commissioner found that the claimant’s training, including on-the-job training, qualified him for numerous employment possibilities. Thus, no abuse of discretion in denying further § 31-308a benefits.

Employer argued that trier erroneously awarded § 31-308a benefits after finding that the claimant did not search for work within his light duty capacity. CRB explained that evidence other than a job search may provide proof that claimant is unemployable, or is unable to make the same wages as he did previously. Here, trial commissioner found that claimant was able to perform light duty work during the period at issue, but that his employer did not provide him with suitable work. Moreover, claimant required light duty work for only a very limited time. Under these circumstances, trial commissioner could infer that claimant was willing and able to work, but that searching for work for such a limited time would be futile.

CRB affirmed trial commissioner’s award of additional permanent partial disability benefits with respect to its duration. At the time of 1992 injury, statute did not restrict the length of an award to the duration of the claimant’s permanency award. However, CRB remanded with respect to the amount of benefits, as there was no evidence to establish wage differential beyond 1994. Trier improperly relied upon maximum weekly wage as the applicable compensation rate based on its use in a prior award of § 31-308a benefits that was based solely upon a stipulation by the parties. See also, Moran, § 31-278.

Claimant was attending workers’ rehabilitation classes three days per week. Inquiries into light duty employment for jobs at which she had prior experience were fruitless. No requirement to exhaust all potential job-seeking avenues. Trier could reasonably have concluded that she had no earning capacity. Award of benefits affirmed.

Trial commissioner’s denial of § 31-308a benefits to claimant affirmed. Claimant did not show that he was willing and able to work in the state of Connecticut as required by § 31-308a(b), and the comments of the claimant and a vocational expert indicated to the commissioner that he was not motivated to return to work or inclined to obtain work in Connecticut. Claimant also provided no information regarding the current earnings of an employee working at his former position. However, CRB noted that the trier should not categorically ignore the job that the claimant was performing at the time of his injury in determining his lost earning capacity simply because he had only been working at that job for two months.

Panel affirmed trial commissioner’s dismissal of claim for further discretionary benefits. Commissioner considered the appropriate statutory factors in making her decision. Additional findings relating to claimant’s failure to maximize earning capacity were not erroneous; commissioner is not prohibited from taking said factor into account, although claimants are not required to introduce evidence of maximized earning potential in order to establish earning capacity for § 31-308a claim. See also, Pontoriero, § 31-301. Factual findings.

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

Trier’s award of § 31-308a benefits affirmed. Statutory change restricting duration of discretionary benefits to number of weeks of permanent partial disability benefits took effect after the injury, and is inapplicable to this case. Law does not specifically require a claimant to seek work; commissioner may determine that a claimant qualifies for benefits by other means. Here, nature of injury and its severity justified an award without requiring the claimant to perform further work searches that would be fruitless. However, CRB noted for future cases that once a claimant turns 65 and begins receiving Social Security retirement checks, a showing that circumstances warrant the continued receipt of § 31-308a benefits should be required.

Perri v. Mitchell Motors, 16 Conn. Workers’ Comp. Rev. Op. 242, 3259 CRB-6-96-1 (June 24, 1997).

See, Perri, § 31-300.

Bowman v. Jack’s Auto Sales, 16 Conn. Workers’ Comp. Rev. Op. 223, 3384 CRB-1-96-7 (June 18, 1997), aff’d, 54 Conn. App. 289 (1999).

Award of discretionary benefits affirmed, as prior decision in Bowman, 13 Conn. Workers’ Comp. Rev. Op. 192, 1721 CRB-1-93-5 (March 22, 1995), settled this matter; change in duration of award was simply due to adjustment of permanency period. See also, Bowman, § 31-308(b).

Amount of money currently earned by claimant as a part-time secretary was not the only possible evidence of her earning capacity under § 31-308a. See also, Hines, § 31-301. Appeal procedure, § 31-315.

It was within the discretion of the trial commissioner to deny the claimant’s request for § 31-308a benefits as the claimant did not demonstrate that his earning power was adversely affected by his ten percent permanent partial disability of his lumbar spine, which the trial commissioner determined to be his only compensable injury. See also, Figueroa, § 31-294d, § 31-301. Factual findings.

Permanent partial disability not disputed, and commissioner considered age, work history, claimant’s gout, and reduction of earning capacity in making award. However, he reached no conclusion regarding cause of current disability, and actual extent of disability as it affects claimant’s ability to work is not explained. Further, he made no finding as to how much someone working in claimant’s former job currently earns. Remanded for further findings. See also, Stefenski, § 31-296 (discontinuation of payments).

Commissioner awarded claimant 60 weeks of additional benefits, denying anything further. Claimant argues that limiting award was abuse of discretion. Affirmed; appropriate factors were clearly considered in the decision, and commissioner did not have to explain why he chose 60 weeks for length of award. See also, Loomis, § 31-301. Appeal procedure.

Trial commissioner was not required to disregard job search evidence just because claimant failed to list name of specific person contacted; credibility issue. Circumstances of case adequately supported award of additional benefits. See also, Rodriguez, § 31-349.

CRB reversed the trial commissioner’s award of § 31-308a benefits. Specifically, the trial commissioner found that the claimant was capable of light duty work and also found that the employer offered the claimant light duty employment within his treating physician’s restrictions. Accordingly, it was an abuse of discretion for the trial commissioner to award the claimant any benefits under § 31-308a.

Evidence of claimant’s physical limitations and reduced earning capacity, in conjunction with consideration of other statutory factors, supported award of § 31-308a benefits. Failure to submit searches for higher-paying jobs did not require denial of award, as claimant held several jobs, and was found to have a strong work ethic and to have tried to maximize earning capacity. No error in awarding benefits beyond length of permanent partial disability, as 1988 injury occurred prior to change in statute.

Caprio v. Upjohn Company, 15 Conn. Workers’ Comp. Rev. Op. 373, 2123 CRB-3-94-8 (July 12, 1996), dismissed for lack of final judgment, A.C. 16230 (October 30, 1996).

The CRB affirmed the trial commissioner’s award of § 31-308a benefits. The claimant had worked as a Chemical Operator B when he was injured, and subsequently the employer down-sized and laid off several persons in this category. The employer argued that the claimant, due to his seniority level, would have been laid off if he had been working, and thus argued that the earnings of a Chemical Operator B should not be used in determining the claimant’s benefit rate pursuant to § 31-308a. The CRB rejected the employer’s argument as the trial commissioner had made an inference that this figure constituted “the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury” as required by § 31-308a.

Commissioner denied § 31-308a benefits. Affirmed. Commissioner found little or no evidence regarding the scope of the claimant’s current disability; claimant thus failed to meet burden of proving entitlement to benefits. See also, Bailey, § 31-278, and § 31-298.

Grant/denial of benefits under § 31-308a is discretionary. As long as statutory factors are considered, decision must stand. See also, Kulhawik, § 31-301. Appeal procedure.

Serletti v. New Haven, 15 Conn. Workers’ Comp. Rev. Op. 111, 2199-CRB-3-94-11 (January 11, 1996).

CRB affirmed trial commissioner’s denial of further § 31-308a benefits after claimant had received 163 weeks of such benefits where claimant owned a limousine service which grossed over $100,000.00 per year but showed a yearly loss.

Commissioner is entitled to base award of further § 31-308a benefits on change in claimant’s condition. Where requisite statutory factors were considered in findings, and claimant’s condition remained unchanged, commissioner was entitled to deny benefits. Also, motion to submit decision of Social Security Administration as additional evidence denied; SSA standards in adjudicating total disability differ from the § 31-308a standards, and decision would not have affected that reasoning.

McGowan v. Waterbury Farrell, 14 Conn. Workers’ Comp. Rev. Op. 319, 1964 CRB-1-94-2 (September 15, 1995), aff’d, 43 Conn. App. 917 (1996)(per curiam).

Claimant sought discretionary benefits. Commissioner dismissed claim. Affirmed; one of four medical reports prescribed no disability, and commissioner could rely on that. Statutory factors were taken into account. No abuse of discretion. See also, McGowan, § 31-294d.

Trier’s denial of discretionary wage loss benefits supported by record below. See also, Golino, § 31-303(b), Permanent partial. Scheduled/Unscheduled.

Claimant was awarded discretionary benefits while attending school pursuant to DWR-approved vocational rehabilitation program. He voluntarily reduced work hours to attend classes and study. Held, although commissioner’s discretion is not completely unfettered, fact that claimant voluntarily reduced his hours to attend school did not prevent him from receiving benefits under § 31-308a. Humanitarian spirit of Workers’ Compensation Act would not be served by penalizing a claimant who chooses to pursue another career after being permanently disabled from his former line of work by a compensable injury, especially where DWR has approved educational courses and is not providing claimant with financial benefits. Section 31-283a does not preclude commissioner from awarding benefits to claimant whose earning capacity has been compromised by injury.

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

See, Dextraze, § 31-308(a), § 31-308(b), § 31-310.

Claimant failed to seek work after retirement despite medical opinion that she was capable of light duty employment, and did not submit medical reports supporting claim for temporary total disability benefits. Held, statute may not require work searches, but procedure is accepted as evidentiary basis to demonstrate willingness to work. Sufficient evidence existed to support factual determination that claimant was not entitled to further benefits.

No error in conditioning further discretionary benefits on a change in the claimant’s medical condition. Commissioner has discretion to set duration of benefits, and appropriate factors were considered in this case.

Goodwin v. Stop & Shop, 13 Conn. Workers’ Comp. Rev. Op. 301, 1830 CRB-3-93-9 (April 21, 1995).

Injury caused claimant to transfer from meat to grocery department. Commissioner based calculation of benefits in part on overtime pay formerly received, finding that, while overtime was unavailable in the grocery department, meat department still had overtime available. Held, § 31-308a use of “wages” instead of “average weekly earnings” does not exclude overtime pay. See, Vecca v. State, 29 Conn. App. 559 (1992). Fact that overtime work was not guaranteed in union contract did not preclude finding that claimant would actually have earned overtime if he had stayed in the meat department, thus earning more money.

Respondents argued that commissioner improperly determined claimant’s earning capacity. Held, statute does not require presentation of evidence that claimant is “maximizing” earning capacity; performance of a job is acceptable evidence of earning capacity. Averaging of job salaries is acceptable method of determining earning potential. See also, Genovesi, § 31-301. Factual findings.

Commissioner’s decision to deny additional benefits based solely on medical report showing decrease in percentage of disability. Held, commissioner’s discretion broad, but not unfettered; commissioner failed to address findings showing diminished earning capacity in decision to deny benefits. Error not to consider other factors besides decrease in disability percentage, i.e. participation in DWR-approved program. Remanded.

Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 1721 CRB-1-93-5 (March 22, 1995), aff’d, 54 Conn. App. 289 (1999).

Commissioner found that claimant not totally disabled, but permanent partial impairment of hands had unusually high impact on him, so 104 weeks of discretionary benefits awarded. Held, claimant not specifically required to seek work to qualify for benefits, although job searches are encouraged; claimant here was not realistically employable in another capacity, and commissioner did not err in making award. See also, Bowman, § 31-301. Factual findings.

Commissioner found that claimant was capable of performing job offered to him, for which he failed to report. No factual basis thus existed for discretionary award, as there was nothing to indicate what, if any, loss of earning capacity the claimant incurred. See also, Wrighten, § 31-301. Factual findings.

Job searches are not exclusive means to prove availability of work. Based on testimony of claimant and deposition testimony, trier’s award of benefits based on evidence will not be disturbed. See also, Lennon, § 31-301. Appeal procedure.

Benefits are not warranted under § 31-308a or § 31-307(a) if a claimant is capable of employment but chooses not to pursue it. Here, commissioner found claimant was physically able to perform other work, but did not attempt to find it or seek vocational retraining. Limited command of English language by claimant no excuse for failure to seek light duty work.

Capasso v. Fusco Corporation, 13 Conn. Workers’ Comp. Rev. Op. 30, 1622 CRB-3-93-1, 1920 CRB-3-93-11 (November 8, 1994).

The fact that claimant returned to some type of construction work after being released for light duty, with physician recommended construction work restrictions, fails to support a finding to deny § 31-308a benefits. Evidence and underlying purpose of the workers’ compensation act supports trier’s award of benefits. See also, Capasso, § 31-301. Appeal procedure.

Salz v. Oliver’s Taverne, 12 Conn. Workers’ Comp. Rev. Op. 325, 1593 CRB-8-92-12 (July 5, 1994).

Trier’s finding regarding claimant’s earning capacity and resulting wage loss supported by evidence. See also, Salz, § 31-308(b).

Woznicki v. Meriden Yellow Cab, 12 Conn. Workers’ Comp. Rev. Op. 238, 1509 CRB-8-92-9 (March 28, 1994).

A finding that claimant was partially disabled does not mandate an award for additional benefits as § 31-308a benefits are discretionary. See also, Woznicki, § 31-307.

Burgos v. United Technologies/Sikorsky Aircraft Division, 12 Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 1994).

Within trier’s discretion to decide whether compensable injury continued to adversely affect claimant’s earning capacity. See also, Burgos, § 31-294d and § 31-301-9.

Mucha v. Caval Tool & Machine Co., 12 Conn. Workers’ Comp. Rev. Op. 128, 1465 CRB-6-92-7 (February 28, 1994).

Trier’s finding that claimant’s inability to find employment was not the result of his work related injury properly supported a denial of § 31-308a benefits.

Camp v. White Oak Corporation, 12 Conn. Workers’ Comp. Rev. Op. 121, 1443 CRB-6-92-6 (February 28, 1994).

Remanded. Trier misapplied statutory language as to the calculation of benefits, claimant’s earning capacity and claimant’s entitlement to benefits. Trier erred in applying compensation rate as part of the computation of claimant’s wage loss difference. See also, Camp, § 31-294(e). Medical care refusal.

Civardi v. Norwich, 12 Conn. Workers’ Comp. Rev. Op. 100, 1376 CRB-2-92-1 (February 28, 1994), aff’d, 231 Conn. 287 (1994).

Reversed. CRB held employer had standing to present evidence relative to employee’s § 31-308a claims where liability had been transferred to the Fund. See also, Civardi, § 31-284b and § 31-349.

Farina v. Tony’s Auto Sales, 11 Conn. Workers’ Comp. Rev. Op. 96, 1282 CRD-5-91-8 (May 14, 1993).

Remanded. Trier’s award of § 31-308a discretionary benefits inconsistent with trier’s finding that claimant’s evidence of diminished earning capacity was not persuasive.

Matteson v. American Standard, 11 Conn. Workers’ Comp. Rev. Op. 74, 1216 CRD-2-91-4 (May 4, 1993).

Evidence before trier supports conclusion claimant could return to work as a result of carpal tunnel injuries. However, trier found claimant was totally disabled due to a condition unrelated to the compensable carpal tunnel injuries, therefore, any diminution in earnings or requisite work capacity did not meet criteria to award § 31-308a benefits.

Graziano v. St. Mary’s Hospital, 11 Conn. Workers’ Comp. Rev. Op. 10, 1230 CRD-5-91-5 (February 8, 1993).

Claimant entitled to receive § 31-308a benefits for a 1981 injury and temporary total benefits for a separate 1985 injury simultaneously. This is not considered double compensation. Trier found with or without the injury of 1985, claimant’s diminished earning capacity would have continued. Remanded to determine amount of benefits due. See also, Graziano, § 31-296, and § 31-310.

Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 1111 CRD-4-90-9 (January 28, 1992).

Remanded as trier’s conclusion claimant was able to work, however no work was found or available during period in question lacks evidentiary factual findings. Work search procedure is an informally accepted evidentiary basis to demonstrate a willingness to work. However, it is not the only evidentiary means by which a claimant may demonstrate reasonable efforts to find work. See also, Goncalves, § 31-301. Factual findings, § 31-308a.

Lagueux v. Veilleux, 9 Conn. Workers’ Comp. Rev. Op. 177, 876 CRD-6-89-6 (August 13, 1991).

Trier’s denial of § 31-308a discretionary benefits will not be disturbed where testimony and record below indicate claimant failed to perform any job searches during period in question. Lack of comprehension of § 31-308a requirements does not support claim for entitlement. See also, Lagueux, § 31-307, § 31-315.

Traylor v. Poquonnock Bridge Fire District, 8 Conn. Workers’ Comp. Rev. Op. 59, 788 CRD-2-88-11 (March 23, 1990).

Remanded to determine method of calculating benefits using statutory procedure. See also, Traylor, § 31-307.

Vincent v. New Milford, 8 Conn. Workers’ Comp. Rev. Op. 27, 761 CRD-7-88-8 (February 5, 1990).

Section 31-308a benefits when construed with § 31-307 and § 31-309 cannot exceed basic compensation rate.

Hicks v. State/Dept. of Administrative Services, 6 Conn. Workers’ Comp. Rev. Op. 111, 429 CRD-5-85 (February 23, 1989), no error, 21 Conn. App. 464 (1990), cert. denied, 216 Conn. 804 (1990).

Awards under this section are within trial commissioner’s discretion and will not be upset unless conclusion reached was an abuse of discretion. See also, Hicks, § 31-300, § 31-307, § 31-308(c).

Fappiano v. Nutmeg Concrete Inc., 6 Conn. Workers’ Comp. Rev. Op. 29, 652 CRD-3-87 (September 27, 1988).

Trial commissioner must compute actual amount due and that such computation must be based on evidence.

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

Trial commissioner’s use of unemployment compensation rate to determine earning capacity not permissible. Further, chamber maid’s duties will not be administratively noticed as light duty and benefits under § 31-308a are applicable after payment for specific.

DeGeorge v. Casolo, 1 Conn. Workers’ Comp. Rev. Op. 34, 24 CRD-7-80 (May 26, 1981).