Bowman v. Jack’s Auto Sales et al.

The claimant was represented by Warren Miller, Esq., Rakosky, Smith, Miller & Papp, P.C., 71 Granite St., New London, CT 06320.

Jack’s Auto Sales and American Mutual Liability Insurance Co. were represented by David A. Kelly, Esq., Montstream & May, P. O. Box 1087, Glastonbury, CT 06033-6087.

AAMCO Transmissions and Hartford Insurance Group were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury Fund was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120

These Petitions for Review from the April 30, 1993 Finding and Award of the Commissioner acting for the Second District were heard May 20, 1994 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, Nancy A. Brouillet and Michael S. Miles.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. With the exception of the Second Injury Fund, all involved parties have filed petitions for review from the April 30, 1993 Finding and Award of the Commissioner for the Second District. The claimant appeals the commissioner’s ruling entitling the respondents to a credit of 48.4 weeks for permanent partial impairment compensation already paid; AAMCO and Hartford Insurance Group appeal the commissioner’s failure to grant part of their Motion to Correct; and Jack’s Auto Sales and American Mutual Liability Insurance Co. appeal several of the commissioner’s findings, including his decision that notice to the Second Injury Fund was untimely under § 31-349 C.G.S., his failure to assess any liability against AAMCO, and his award of benefits under § 31-308a C.G.S. to the claimant.1 We affirm the commissioner’s decision in part and reverse in part.

The claimant was originally injured in the course of his employment with Jack’s Auto Sales on October 27, 1977, when a battery exploded in his hands. As a result of that injury, the claimant suffered a ten percent permanent partial impairment of both hands and was paid specific indemnity benefits pursuant to a voluntary agreement. The claimant also sought and received benefits pursuant to § 31-308a in 1982 and 1985. The commissioner found that the compensable injury resulted in dermatitis to the claimant’s hands and that the claimant was prescribed steroids to treat the condition, which drug he took for seven years. The claimant began working for AAMCO in May 1986, but left after six months due to extreme dermatological problems with his hands. The claimant did not seek work again after leaving AAMCO.

The commissioner found that the claimant’s permanent partial impairment was a result of the 1977 compensable injury, and that it did not substantially increase after his employment with AAMCO. He also found that the claimant had a residual earning capacity despite his reading and writing limitations, and thus was not totally disabled. The commissioner chose to accept the testimony of Dr. Goldman, the physician who treated the claimant for the longest period of time, and based on Dr. Goldman’s diagnosis he awarded the claimant 78 weeks of permanent partial impairment benefits “for which there is a credit of 48.4 weeks already paid.” Because of the claimant’s age, lack of skills and limited education, the commissioner also found that his permanent partial impairment had an unusually high impact on him, and awarded him 104 weeks of additional compensation under § 31-308a. Liability for these benefits was assessed solely against Jack’s Auto Sales and American Mutual Insurance, whose claim for relief against the Second Injury Fund was denied.

We first address the contention of Jack’s Auto Sales and American Mutual that the claimant should not have been awarded benefits pursuant to § 31-308a because he did not search for work after leaving his employment with AAMCO. Once a specific indemnity award has been exhausted, § 31-308a permits the commissioner to award benefits where a claimant’s earning power has been adversely affected by a work-related injury. Burgos v. United Technologies/Sikorsky Aircraft Division, 1441 CRB-4-92-6 (decided March 15, 1994). The commissioner is required to consider the “nature and extent of the injury, the training, education and experience of the employee, [and] the availability of work for persons with such physical condition and at the employee’s age. . . . ” in determining the duration and amount, if any, of such an award. See Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 180, 876 CRD-6-89-6 (Aug. 13, 1991). Absent an abuse of discretion, this Board may not reverse a commissioner’s § 31-308a award. Burgos v. United Technologies/Sikorsky Aircraft Division, supra.

In the instant case, the 48-year-old claimant had been a transmission specialist since 1964, but was advised by Dr. Goldman that he should discontinue working on transmissions due to the skin problems on his hands. The claimant testified that he had been employed as a transmission specialist several times since his 1977 injury at work, but had to leave such employment each time due to flare-ups in his hand condition that led to periods of disability. A vocational specialist placed the claimant’s reading skills at a third grade level and his mathematical skills at a sixth grade level, and described the claimant as very limited in his manual dexterity because of pains the claimant experienced in his wrists and arms from epicondylitis. In the opinion of the specialist, the claimant had very severe vocational limitations with respect to finding work. The commissioner specifically found that the claimant was not totally disabled, but stated that “the permanent partial impairment has had an impact upon him which is greater than upon other individuals” in awarding § 31-308a benefits. We think that these findings sufficiently support that award.

The failure of a claimant to look for work or accept offered employment has often been cited as a reason to deny benefits under § 31-308a. Burgos v. United Technologies/Sikorsky Aircraft Division, supra; Lageux v. Rene Dry Wall Co., Inc., supra, 181. However, the statute does not specifically require the claimant to seek work, and a job search is not the only evidentiary means by which a commissioner may determine that a claimant qualifies for a discretionary award of benefits. Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 45, 1111 CRD-4-90-9 (Jan. 28, 1992). Here, there was no suggestion that the claimant had been offered work or that he could procure gainful employment of some kind outside of transmission work, which was his only field of expertise and was now forbidden to him because of the work-related injury to his hands. The evidence, in particular the claimant’s limited education and physical capabilities, strongly suggested that the claimant was not practically employable in another capacity. Although this Board advises that claimants seeking § 31-308a benefits show evidence that they have looked for suitable employment, we think that in this case, the commissioner did not abuse his discretion in awarding benefits under that section.

We next address the respondents’ contention that the commissioner improperly held that Jack’s Auto Sales and American Mutual Liability Insurance failed to prove their claim for relief against the Second Injury Fund. The respondents do not contest the Fund’s assertion that one hundred thirty-eight weeks of compensation had been paid to the claimant before the Fund was notified of the claim pursuant to § 31-349 (a). Rather, they argue that because the claimant received benefits concurrently for the disability to each hand, the 138 weeks of benefits paid should be split in half under Lovett v. Atlas Truck Leasing, 171 Conn. 577 (1976), for the purpose of determining whether notice was timely. We need only follow Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993), to determine this issue.

In Vaillancourt, our Supreme Court held that the notice provision of § 31-349 refers to the first one hundred four weeks of disability rather than the first one hundred four weeks of unreimbursed payments made by the employer. In our case, the claimant was receiving payments one hundred thirty-eight weeks before notice was provided to the Fund. Regardless of the payment characterization used in Lovett, it is undisputed that both of the claimant’s hands were in fact disabled the entire time the claimant was receiving benefits, and that under Vaillancourt, the notice period in § 31-349 had therefore lapsed long before notice was actually provided to the Fund. The commissioner’s decision on that issue is affirmed.

In regard to the claimant’s contention that the respondents should not have been credited with 48.4 weeks of payment against the claimant’s specific indemnity award, as well as in regard to the respondents’ arguments regarding the relationship of the claimant’s disability to an injury that might have occurred while he was in the employ of AAMCO, we have determined that a remand is appropriate for further factual findings. The commissioner’s reference to a “new injury which [the claimant] suffered in 1985 at Aamco Transmission” is inconsistent with his granting of AAMCO’s Motion to Correct, which changed the starting date of the claimant’s employment with AAMCO from October 1985 to May 1986, and with his refusal to assess liability for payment of the claimant’s benefits against AAMCO’s insurance carrier. Where conclusions are inconsistent with the facts found, this Board may order a remand. Tessier v. Kogut Florist, 9 Conn. Workers’ Comp. Rev. Op. 276, 277, 1088 CRD-8-90-7 (Dec. 13, 1991).

We are also unable to determine the basis of the commissioner’s conclusion that the payor of the claimant’s specific award was entitled to offset 48.4 weeks for compensation already paid. Thus, further findings on this issue will also be necessary, as we cannot let the commissioner’s conclusion stand without subsidiary findings to support it. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The trial commissioner is affirmed in part and reversed in part, and the case is remanded for further findings in accordance with this opinion.

Commissioners Nancy A. Brouillet and Michael S. Miles concur.

1 Jack’s Auto Sales and American Mutual Insurance also appeal from the commissioner’s August 25, 1993 denial of their Motion for Additional Finding, which concerned the respondents’ claim regarding the liability of the Second Injury Fund. BACK TO TEXT