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CASE NO. 1680 CRB-2-93-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 12, 1995
SECOND INJURY FUND
The claimant was represented by Howard B. Schiller, Esq., 55 Church St., P.O. Box 699, Willimantic, CT 06226.
The employer was not represented at oral argument.
The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120
This Petition for Review from the March 11, 1993 Finding and Award of the Commissioner acting for the Second District was heard April 29, 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.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 11, 1993 Finding and Award of the Commissioner for the Second District.1 On appeal he argues that the commissioner improperly approved a Form 36 filed by the respondent Second Injury Fund, as insufficient factual findings had been made to support the discontinuation of the claimant’s total disability benefits. We affirm the decision of the trial commissioner.
The claimant, a machine operator for the now-defunct employer, initially suffered a compensable back injury in 1974. He returned to a light duty position as a timekeeper for the employer subsequent to the injury, but continued to be totally incapacitated at times when his back condition (spondyolithesis) would flare up. Liability for the claimant’s benefits was transferred to the Second Injury Fund in 1980. In January of 1986, the claimant’s treating physician, Dr. Glenney, disabled him from work because of acute back pain. The doctor testified that the claimant’s worsened condition was due to an increase in scar tissue caused by the spondyolithesis. The claimant declined the doctor’s offer of surgery to relieve the pain, as the claimant had doubts about the efficacy of the procedure.
On July 26, 1991, the Fund filed a Form 36 seeking to discontinue payment of total disability payments. The claimant protested, maintaining that his back pain was so intense that he could not stand or sit for long periods and could not drive a car for more than fifteen minutes at a time. Dr. Glenney testified that the claimant was capable of light sedentary work, but due to his lack of education, age, and the poor job market, was practically unemployable. He also testified that the claimant’s disability was mainly based on the pain caused by the buildup in scar tissue. A vocational rehabilitation specialist agreed that the claimant was not capable of returning to work due to the factors cited by Dr. Glenney, although he added that the claimant had no motivation to return to work. An orthopedist hired by the respondent to examine the claimant opined that the claimant had a 31 percent permanent partial impairment of the back but was nonetheless capable of part-time sedentary light work with minimal lifting.
The commissioner found that the claimant’s limitations were mainly due to pain, and might have been partially relieved by surgery. He approved the Form 36 and ordered the commencement of specific indemnity payments for the permanent partial impairment of the back, stating that “[w]hile the claimant makes a compelling case for the payment of benefits pursuant to C.G.S. 31-308a, I cannot find that the effects of the compensable injury are the same as one who has suffered the effects of permanent and total disability pursuant to C.G.S. 31-307(a)-(f).” The claimant challenges the propriety of these findings and the legal conclusions drawn from them.
The question as to the existence of total disability is a factual issue to be determined by the trier of fact. Sgambato v. Simkins Industries, Inc., 8 Conn. Workers’ Comp. Rev. Op. 129, 130, 825 CRD-3-89-2 (Aug. 6, 1990); see also Vuoso v. Custom Gunite Pools, 1581 CRB-7-92-12 decided (Dec. 7, 1994). Unless there is no evidence to support them, they are contrary to law, or they are based upon unreasonable factual inferences, we will not disturb the factual findings of a trial commissioner. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Here, there was testimony as to the claimant’s ability to do light sedentary work upon which the commissioner could have relied. Additionally, the vocational expert who testified for the claimant mentioned that the claimant had no motivation to return to work, and the claimant himself testified that his incapacity is partially due to the lack of light duty work in eastern Connecticut. See Ferrara v. Clifton Wright Hat Co., 125 Conn. 140, 143 (1939) (in order to be compensable, inability to obtain work must not be due to change in market conditions). Given these findings, we cannot say that the claimant, as a matter of law, met the standard of “total incapacity to work” set forth in § 31-307 C.G.S.
Despite the claimant’s assertions, we do not think that the commissioner’s comparison of the claimant’s injury with the injuries cited in § 31-307 (a) - (f) or his finding that the claimant’s incapacity was primarily due to pain precluded a proper evaluation of the claimant’s earning capacity and ability to work under the statute. As stated above, there was evidence to support a finding that the claimant was not totally disabled using the proper test under § 31-307. Furthermore, it is evident from the findings that the commissioner did make a determination that the claimant was capable of work activities within the meaning of the statute, and that this determination was supported by competent evidence. As we will not substitute our findings for those of the commissioner, see Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979), this determination must stand.
We affirm the trial commissioner’s decision.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.
1 A cross-appeal filed by the respondent Second Injury Fund was abandoned at oral argument. BACK TO TEXT
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