Matteson v. American Standard, Inc.

CASE NO. 1216 CRD-2-91-4

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

MAY 4, 1993

THOMAS MATTESON

CLAIMANT-APPELLANT

v.

AMERICAN STANDARD, INC.

EMPLOYER

and

TRAVELERS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Mark W. Oberlatz, Esq., of O’Brien, Shafner, Bartinik, Stuart and Kelly, P.C., P.O. Drawer 929, Groton, CT 06340.

The respondents were represented by Robert Cullen, Esq., Law Offices of Robert S. Cullen, P.O. Box 9802, New Haven, CT 06536-0802.

This Petition for Review from the March 28, 1991 Finding and Award of the Commissioner for the Second District was heard August 7, 1992 before a Compensation Review Board panel consisting of the Commission Chairman, Jesse Frankl and Commissioners James J. Metro and Roberta D’Oyen.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 28, 1991 Finding and Award of the Commissioner for the Second District. In that Finding and Award the trial commissioner denied the claimant’s claim for benefits pursuant to Sec. 31-308a C.G.S. The pertinent facts are as follows.

The claimant and the respondents entered into a Voluntary Agreement approved June 15, 1988 which reflected a November 5, 1987 carpal tunnel injury. The claimant had been employed by the respondent since July, 1981 and in the course of his duties lifted and sprayed toilet bowls. As a result of his injury the claimant had surgery on his right hand in February, 1988 and on his left hand in May, 1988. Both hand surgeries were performed by Dr. Michael Ellsworth, an orthopedic surgeon. As of March 6, 1990, the respondents agreed to pay the claimant permanent partial disability benefits for the five percent (5%) loss of use of both hands.

At some point not determined by the trial commissioner, the claimant began experiencing pain in his arms, legs, shoulders, hips, and back in addition to the pain in his wrists. The claimant contended that the pain is accompanied by twitching and the right side of his body often goes numb.

The claimant has been treated at the University of Massachusetts Pain Clinic. The claimant contends that neither he nor the physicians at the University of Massachusetts Pain Clinic know the basis for his twitching and pain. There was also evidence before the trial commissioner which indicated that based on the carpal tunnel injuries alone the claimant could return to work. See Respondent’s Exhibits 1 and 3. (April 24, 1989 Report of Dr. H. Kirk Watson, M.D. and September 11, 1989 Report of Dr. Richard M. Linburg, M.D.). The trial commissioner found that the claimant was totally disabled due to the condition for which he was treating with University of Massachusetts Pain Center and that condition was unrelated to the compensable injury.

The only issue on review is whether the trial commissioner erred in denying the claimant benefits pursuant to Sec. 31-308a. The claimant concedes that an award for Sec. 31-308a benefits is a matter within the discretion of the trial commissioner. Lageux v. Rene Dry Wall Co., Inc. 9 Conn. Workers’ Comp. Rev. Op. 177, 876 CRD-6-89-6 (8/13/91). Section 31-308a C.G.S. provides:

In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than the maximum provided in section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner.

Clearly, in order to be eligible for Sec. 31-308a, the claimant must prove, inter alia, that he has some work capacity and that the dimunition in his earnings is causally related to a compensable injury. In the instant matter, the trial commissioner did not find that either the requisite work capacity or causal relationship to a compensable injury existed. We also note that the claimant did not file a Motion to Correct and thus, the facts as found by the trial commissioner must stand. Mack v. Blake Drug Co., 152 Conn. 523 (1965).

Thus, on the basis of the criteria of Sec. 31-308a and the facts as found by the trial commissioner, we do not think that the trial commissioner abused his discretion.

We therefore affirm the trial commissioner’s March 28, 1991 dismissal of the claimant’s claim for benefits pursuant to Sec. 31-308a.

Commissioners James J. Metro and Roberta D’Oyen concur.