Farina v. Tony’s Auto Sales

CASE NO. 1282 CRD-5-91-8

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

MAY 14, 1993

ROGER FARINA

CLAIMANT-APPELLEE

v.

TONY’S AUTO SALES

EMPLOYER

and

INSURANCE COMPANY OF NORTH AMERICA (CIGNA)

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Edward T. Dodd, Jr., Esq. and Ross Lessack:, Esq., Law Offices of Edward T. Dodd, Jr., 162 Grand Street, Waterbury, CT 06702.

The respondents were represented by Diane Duhamel, Esq., Trowbridge, Ide, Mansfield and Schoolcraft, 207 Main Street, Hartford, CT 06106.

This Petition for Review from the August 19, 1991 Finding and Award of the Commissioner for the Fifth District was heard June 26, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl, and Commissioners Gerald Kolinsky and James J. Metro.

OPINION

JESSE FRANKL, CHAIRMAN. The respondents appeal the Commissioner of the Fifth District’s August 19, 1991 Finding and Award in which the claimant was awarded benefits pursuant to Section 31-308a C.G.S. for the period March 8, 1990 to August 5, 1990. The claimant was also awarded interest at 10% per annum because of the benefit to the respondents from the use of the funds.

The pertinent facts are as follows. On March 29, 1985 the claimant sustained an injury to his lumbar spine that arose out of and in the course of his employment with the respondents. As a result, the claimant was left with a 17.5% permanent impairment to the lumbar spine with maximum medical improvement October 11, 1988.1 The claimant spent virtually all of his adult life as an auto mechanic with no other skills or experience. The extent of the claimant’s impairment diminished his employability and capacity for employment. The claimant sought Section 31-308a benefits for the period March 8, 1990 to August 6, 1990 in the amount of $133.00 a week based on a diminished earning capacity of $5.00 per hour or $ 200 per week.

In his August 19, 1991 Finding and Award the trial commissioner found that the claimant was entitled to benefits at the base rate from March 8, 1990 through August 5, 1990 along with interest at 10% per annum. The commissioner further found that the claimant’s evidence of his diminished earning capacity was not persuasive and dismissed the claim for benefits to supplement claimant’s earning capacity pursuant to Section 31-308a C.G.S. However, the trial commissioner then ordered the respondents to pay the claimant at his base rate plus 10% interest for the period March 8, 1990 through August 5, 1990.

The ultimate issue presented for review by the respondents’ appeal is whether the Commissioner erred in awarding claimant benefits pursuant to C.G.S. Section 31-308a for the period March 8, 1990 to August 6, 1990. The respondents contend that the claimant is not entitled to Section 31-308a benefits at his base compensation rate because the claimant failed to perform a diligent job search. The respondents further argue that the claimant is not entitled to benefits at his base compensation rate as claimant failed to provide evidence establishing his current wages and thus, the commissioner did not have a sufficient basis upon which to award benefits in accordance with Section 31-308a of the General Statutes. The issue of awarding benefits pursuant to Section 31-308a C.G.S. is not a novel problem. In the past, courts have given trial commissioner’s a great degree of discretion when awarding Section 31-308a benefits.

Neither the statute nor any administrative regulation requires a work search. The work search practice, instituted by the commission some two decades ago, was borrowed from the procedure employed in administering the unemployment compensation law. Our own Section 31-308(a) never specifically included the requirement of reasonable efforts to find work as did the unemployment law. However the work search procedure was informally accepted as an evidentiary basis to demonstrate the unavailability of such work. However there are other evidentiary means by which those requirements may be demonstrated. Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 1111 CRD-4-90-9 (1992).

Claimant sought benefits for the period March 8, 1990 to August 6, 1990. As stated, a work search is not the only basis on which to prove an individual’s availability for work. There are other evidentiary means that can be used to demonstrate reasonable efforts to find employment. The quantum of proof to be used for awarding discretionary Sec. 31-308a C.G.S. benefits has to be considered within the totality of the evidentiary hearings including claimant’s personal testimony. Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 876 CRD-6-89-6 (1991). Here the trial commissioner found the following in his August 19, 1991 Finding and Award; (1) considering the statutory criteria claimant is entitled to benefits at the base rate from March 8, 1990 through August 5, 1990 and (2) claimant’s evidence of his diminished earning capacity was not persuasive. The Finding and Award is inconsistent on its face. Thus, the factual findings in the commissioner’s August 19, 1991 Finding and Award do not support his conclusions.

We therefore remand the instant matter.

Commissioners Gerald Kolinsky and James J. Metro concur.

1 A Voluntary Agreement approved April 14, 1987 indicated that the claimant sustained a 10% permanent partial disability to his back and that maximum medical improvement was reached Sept. 15, 1986. A subsequent Voluntary Agreement was approved August 11, 1989 which reflected that the claimant had sustained an additional 7.5% permanent partial disability to his back and that maximum medical improvement was reached Oct. 11, 1988. Thus, the claimant was found to have sustained a 17.5% permanent partial disability to his back. BACK TO TEXT