Capasso v. Fusco Corporation et al.

The respondents L. G. DeFelice, Inc. and Liberty Mutual Insurance Co. were represented by Kevin J. Maher, Esq., James Moran, Esq. and Maureen Driscoll, Esq., all of Maher & Williams, P. O. Box 550, Fairfield, CT 06430-0550.

The respondents Fusco Corporation and ITT Hartford were represented by Lucas D. Strunk, Esq. and James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

These Petitions for Review from the January 20, 1993 and November 26, 1993 Finding and Awards of C.G.S. 31-308a of the Commissioner acting for the Third District were heard January 28, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent-insurer, Liberty Mutual Insurance Co., [hereinafter respondent-Liberty] in its capacity as the insurer for the employer L. G. DeFelice took an appeal from the Commissioner acting for the Third District’s January 20, 1993 Finding and Award of C.G.S. 31-308a Benefits and an appeal from that same commissioner’s subsequent November 26, 1993 Finding and Award of C.G.S. 31-308a Benefits. These appeals were consolidated and are therefore considered together.

In the January 20, 1993 Finding and Award, the trial commissioner found the following. The claimant suffered an injury at work to his right shoulder on February 13, 1989 while in the employ of the respondent L. G. DeFelice. That injury was accepted by the respondent-Liberty and a fifteen percent permanent partial disability was paid pursuant to a Voluntary Agreement.

On July 20, 1990 the claimant injured his lumbar spine, cervical spine and jaw in another work accident. That claim was also accepted by the respondent-Liberty and permanent partial disability benefits were paid for a seven and one half percent loss of use of the lumbar spine, two and one half percent loss of use of the cervical spine and ten percent loss of use of the jaw.

The trial commissioner also took administrative notice of a Form 36 Notice of Intent to Discontinue or Reduce Benefits filed on March 28, 1991 which was predicated upon the claimant having reached maximum medical improvement from the July 20, 1990 injuries. In the medical report accompanying the Form 36, the claimant was prohibited from construction work and he was advised that he should seek sedentary work. The trier found that the claimant obtained restricted work with the respondent-Fusco Corporation on July 3, 1991 at a pay rate of $15.75 per hour.

The claimant then sustained the back injury of October 16, 1991 while in the employ of the respondent-Fusco. Pursuant to a Form 36 approved March 16, 1992, the claimant was released for light duty. Claimant began light duty job searches after the approval of the Form 36.

On May 6, 1992 the claimant was examined by Dr. Enzo Sella who opined that the claimant “still had a 7 1/2 percent permanent partial disability and that his work capacity was the same as it was prior to his commencing restricted work with the Fusco Company in October 1991” (Claimant’s Exhibit A). Paragraph #10 of the January 20, 1993 Finding and Award. See also, Paragraph #9 of the November 26, 1993 Finding and Award.

The commissioner found that the claimant complied with light duty job searches from September 23, 1992 through October 2, 1992 and in October 1992 obtained employment with Custom Car Wash at $5.00 per hour. On November 30, 1992 the claimant left his employment with Custom Car Wash and began employment with the Olive Garden Restaurant at a rate of $6.00 per hour. He then left the Olive Garden’s employment and went to work for Annicelli’s Produce.

In his January 20, 1993 Finding and Award the trier awarded Sec. 31-308a benefits for the periods of employment during which the claimant earned less money than he would have earned while in the employ of L. G. DeFelice.1

The respondents-Liberty appealed from both of the trier’s Finding and Awards in this matter. The respondents-Liberty present the following issues for review; (1) whether the trial commissioner erred in failing to grant the respondent-appellants’ Motion to Correct and (2) whether the trial commissioner erred as a matter of law in awarding the claimant benefits pursuant to Sec. 31-308a.

At the outset, we note that in its Motion to Correct filed February 9, 1993 and which challenges the underlying factual findings of the trier in his January 20, 1993 Finding and Award, the respondent-appellants failed to state where in the evidentiary record support for the factual corrections would be found. It is not our duty nor the duty of the trier to cull through the evidentiary record in order to ascertain the pertinent excerpts which may support the corrections sought by the appellant. See Gonzalez v. Meriden-Wallingford Hospital, 10 Conn. Workers’ Comp. Rev. Op. 127, 1178 CRD-8-91-2 (1992); Horkheimer v. Town of Stratford, 4 Conn. Workers’ Comp. 139, 163 CRD-4-82 (1987). See also, Sorrentino v. Cersosimo, 103 Conn. 426 (1925). Thus, it was not error for the trier to deny the appellant’s Motion to Correct.

As to its claim that the trier erred in awarding Sec. 31-308a benefits, the respondent-Liberty argues the following. The commissioner found that the claimant obtained restricted work with the Fusco Corp. on July 3, 1991 at the rate of $15.75 per hour. The respondent-Liberty then contends that as the claimant was able to work in the construction industry at a wage rate of $15.75 per hour and was then unable to continue in that type of employment after his October 16, 1991 back injury, the diminution of earnings sustained by the claimant must be attributable to the injury sustained by the claimant as of October 16, 1991 while in the employ of the respondent-Fusco.

While the inference posited by the appellant may have been one that would support a legal conclusion that the claimant’s diminution in earnings was due to the October 16, 1991 injury, it is not an inference and ultimately a conclusion accepted and adopted by the trier. All we can do on review is determine whether there was evidence to support the trier’s conclusion, whether it was based on unreasonable or impermissible factual inferences or whether it was contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

Our review of the record reveals that there was evidence that at least one physician (Dr. Arthur Siegel) was of the opinion that after the July 20, 1990 work injury, the claimant should not resume construction work and should seek less physical, stressful work. The fact that the claimant did return to some sort of construction work does not, as a matter of law, establish that the claimant was restored to the same physical work endurance and capacity as that which he enjoyed prior to the July 20, 1990 injury.2

Furthermore, the evidence before the trier could just as easily be received as supporting a conclusion that the claimant tried to maximize his earnings potential but was unable to work in the construction field for any period of significant duration due to his prior injuries; and that Dr. Siegel’s advice should have been more closely heeded by the claimant. To now view the claimant’s employment with the respondent-Fusco as a factor which conclusively supports a denial of Sec. 31-308a benefits due to injuries sustained while in the employ of L. G. DeFelice, strikes us as an impermissible usurpation of the trier’s function. More importantly, if we were to reassess the facts and compel the conclusion urged by the respondent-appellants, as a matter of law we would arguably undermine one of the underlying purposes of our Workers’ Compensation Act, i.e., to return the injured worker to gainful employment, and have a chilling effect on the willingness of an injured worker to fully explore his work capacity.

We therefore affirm the January 20, 1993 and November 26, 1993 Finding and Awards of C.G.S. 31-308a Benefits.

Additionally, pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 The commissioner concluded in the January 20, 1993 Finding and Award that the claimant was entitled to Sec. 31-308a benefits from September 23, 1992 through October 13, 1992 and a two-third’s wage loss difference from October 14, 1992 through December 14, 1992 between earnings from Custom Car Wash, Olive Garden Restaurant, Annicelli’s Produce and L. G. DeFelice. In his November 26, 1993 Finding and Award the trier additionally awarded Sec. 31-308a benefits from December 15, 1992 through September 3, 1993 for amounts earned during that period due to employment with Annicelli’s Produce and Star Gallo Dist. BACK TO THE TEXT

2 In fact there was testimony by the claimant that the work for which Fusco paid him $15.75/hour was raking and sweeping. See p. 13, Transcript of December 14, 1992 Formal Hearing. BACK TO TEXT