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Shimko v. Ferro Corporation

CASE NO. 1744 CRB-7-93-5



APRIL 18, 1995











The claimant was represented by Jules Lang, Esq., Lepofsky, Lepofsky & Lang, 7-9 Isaac Street, 2nd Floor, P. O. Box 511, Norwalk, CT 06850.

The respondents were represented by James Baldwin, Esq., Cotter, Cotter & Sohon, P. O. Box 5660, Bayview Station, Bridgeport, CT 06610.

This Petition for Review from the May 19, 1993 Finding and Award of the Commissioner acting for the Seventh District was heard September 30, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.


JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 19, 1993 Finding and Award of the Commissioner for the Seventh District. He claims on appeal that the commissioner improperly failed to award benefits under § 31-308(a) C.G.S., even though the commissioner found that the claimant had suffered an occupational disease arising out of and in the course of his employment. He also claims entitlement to benefits under §§ 31-308(d) and 31-284(b) C.G.S. We affirm the trial commissioner’s decision.

The parties stipulated to, and the commissioner found, certain facts. The claimant was employed for over 32 years with the respondent employer until his retirement on October 21, 1990, the claimant’s 55th birthday. The claimant contends that he suffers bouts of dizziness and headaches which were caused by his exposure to fumes during his employment. There is medical testimony relating his headaches and dizziness to the chemical fumes present during his employment with the respondent, and the claimant has been disabled from work involving exposure to chemicals similar to those used at the respondent’s plant. The claimant also has an unrelated heart condition which limits the type of work he can perform.

The claimant has a ninth-grade education, and had never worked for anyone other than the respondent prior to his retirement. He interpreted his doctor’s instructions as limiting him to outdoor work, and has been working for the City of Norwalk cleaning up beaches during the summer months. The claimant now seeks § 31-308(a) temporary partial disability benefits based on his loss of earning capacity.

The commissioner concluded that the claimant’s headaches and dizziness arose out of his employment and constituted a compensable occupational disease. He also concluded that the claimant was neither temporarily totally disabled or permanently partially disabled as a result of that disease. He noted that the claimant had light work capability despite his incapacity, and that he failed to pursue that capability and document a willingness to return to work within that capability, as required by § 31-308(a). The commissioner thus denied the claim for temporary partial disability benefits, from which judgment the claimant appealed.

First, the claimant argues that the commissioner improperly failed to award him § 31-308(a) benefits based on the subordinate findings, and that the commissioner applied the wrong test under the statute. The applicable version of § 31-308(a) provides, in relevant part:

If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the amount he is able to earn after the injury, except that when (1) the physician attending an injured employee certifies that such employee is unable to perform his usual work but is able to perform other work; (2) such employee is ready and willing to perform such other work in the same locality and (3) no such other work is available, such employee shall be paid his full weekly compensation subject to the provisions of this section.

This section makes it clear that if a claimant’s injury results in the claimant being restricted from performing his or her customary work, but still able to perform some employment, the claimant is entitled to benefits. Hansen v. Gordon, 221 Conn. 29, 39 (1992). In such cases, however, the claimant must demonstrate that he or she has attempted to find suitable light duty work. Gordon v. St. Vincent’s Medical Center, 8 Conn. Workers’ Comp. Rev. Op. 22, 23, 758 CRD-4-88-8 (Jan. 18, 1990); see also Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 45, 1111 CRD-4-90-9 (Jan. 28, 1992).

In this case, the commissioner found that the claimant did have a light work capability, and had failed to pursue that capability or show that he was ready and willing to return to work. This conclusion is a factual determination to be made by the trial commissioner, and we cannot substitute our conclusion for his. Gordon, supra. Our review is limited to determining whether that conclusion was contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The respondents point out that the commissioner granted a paragraph of their Motion to Correct stating that the claimant attempted to find other work after the respondent’s plant closed in October of 1988. This finding is not necessarily inconsistent with his finding that the claimant did not meet the work search criteria of § 31-308(a), however. There is no indication as to what type of work the claimant looked for in 1988, or if he attempted to do a thorough work search.

Other findings suggest that the claimant unduly restricted himself to searching for outdoor employment, which in this part of the country is mostly seasonal in nature and explains why the claimant was only able to find a summer job cleaning up the beach. The commissioner was entitled to assume that the claimant was capable of performing many indoor jobs that would not require exposure to hazardous chemicals, and that he simply declined to look for those jobs. We will not disturb that conclusion. As the commissioner applied § 31-308(a) properly, and there is evidence to support his findings, we affirm his denial of benefits under that section.

The claimant also argues that he was entitled to benefits under § 31-308(d) C.G.S. [now repealed] irrespective of the commissioner’s conclusion regarding § 31-308(a) benefits. An award under § 31-308(d) may be made “for the loss of the use of the function of any organ or part of the body not otherwise provided for herein, taking into account the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ or the complete functioning of the organ with respect to the entire body . . . .” The claimant correctly notes that proof of economic loss is not required under that section. Romanski v. West Hartford, 34 Conn. App. 307, 315 (1994). However, an award under § 31-308(d) is discretionary, as is the commissioner’s authority to determine the percentage of permanent impairment to an organ. Id., 314. Given the fact that the claimant’s treating physician observed that the claimant had been free of headaches or dizziness since leaving the respondent’s employment, and there was no evidence of permanent loss of use of an organ, it was well within the trial commissioner’s discretion not to award benefits under the statute.

Finally, we address the claimant’s contention that the commissioner should have ordered the continuation of insurance benefits under § 31-284b, which requires an employer to continue an employee’s health and life insurance coverage while the employee is “eligible to receive or is receiving” payments under the Workers’ Compensation Act. Our Supreme Court has determined that this statute is unconstitutional as applied to private employers such as the respondent. Luis v. Frito-Lay, Inc., Supreme Court, Docket No. SC 14536 (order, April 27, 1993); see also Civardi v. Norwich, 231 Conn. 287, 298-99 n. 14 (1994). Therefore, the statute is inapplicable to the claimant’s insurance benefits as well.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Michael S. Miles concur.

Workers’ Compensation Commission

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