Krouse v. Holmgren Subaru

The respondents - Helmsman Management Services, Inc. were represented by Robert D. McGann, Esq., McGann, Bartlett and Brown, Suite 401, 281 Hartford Turnpike, Vernon, CT 06066.

The Second Injury Fund was represented at trial by Gerard Rucci, Esq., formerly Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101-0120, and on appeal by Brewster Blackall, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101-0120 appeared at oral argument, although no brief was filed.

This Petition for Review from the June 17, 1991 Finding and Dismissal of the Commissioner for the Second District heard April 24, 1992 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Darius Spain and Angelo L. dos Santos.

OPINION

JOHN ARCUDI, COMMISSIONER. Claimant, who is pro se, appeals the commissioner’s denial of his claim for Sec. 31-308 partial wage loss benefits. His compensable injury, January 3, 1987, resulted in a twenty (20%) percent permanent partial disability to his back. He had been a car salesperson and manager at the time of injury, January 3, 1987. As a result of the twenty (20%) permanent partial disability he contended that the duties of a car salesperson were too strenuous, and he was therefore working as a security guard/dispatcher earning $400 per week. At the time of injury his average weekly wage was $507.33. He sought Sec. 31-308 partial wage loss benefits based on the difference between his present earnings and those of his job at the time of injury.

The trier found due to current economic circumstances “wages currently earned by an employee in a position comparable to the position held by the Claimant with the Respondent-Employer are substantially lower than the average weekly wage in 1987, the date of injury. Respondent’s exhibit one reveals that a salesperson earns an average of $277.08 for the first four months of this year.” Paragraph #8. The commissioner then concluded “[A]lthough Claimant suffered a substantial disability, there is no evidence to indicate that he would be earning any more money than he presently does were he employed with the Respondent-Employer.”

The evidentiary hearing was held May 14, 1991. On appeal claimant offered evidence for the period from January, 1991 to June 19, 1991 reflecting average weekly wages for three salespersons of $964.90, $822.06 and $817.00. He also alluded to evidence of another salesperson’s weekly average for the three weeks ending June 19, 1991 of $1234.89. Although claimant referred to this evidence in the Motion to Correct filed July 2, 1991, he was not afforded the opportunity to present it in the Second District proceedings as the hearing was held May 14, 1991, and the evidence covered a period ending after that date. In order to give every opportunity to this pro se claimant for a full hearing on his claim, we conclude that the matter should be remanded for the presentation of this additional evidence. The trier may well hear and consider this new evidence and reach the same conclusion. However, as held in Cormican v. McMahon, 102 Conn. 234, 238 (1925), “Cases under the Workmen’s Compensation Act are upon a different basis from actions between ordinary litigants. No case under this Act should be finally determined when the trial court, or this court, is of the opinion that, through inadvertence, or otherwise, the facts have not yet been sufficiently found to render a just judgment.”

We therefore conclude that the instant matter should be remanded for further proceedings.