Genovesi v. Choice Designs, Inc.

The claimant was represented by Lawrence Sgrignari, Esq., Gesmonde, Pietrosimone, Sgrignari, Pinkus & Sachs 3127-29 Whitney Ave., Hamden, CT 06518.

Choice Designs, Inc. and Peerless Insurance Co. were represented by Joanne T. Belisle, Esq., Montstream & May, P.O. Box 1087, 655 Winding Brook Drive, Glastonbury, CT 06033-6087.

Choice Designs, Inc. and Hartford Insurance Group were represented by Richard Stabnick, Esq. and Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the May 25, 1993 Finding and Award of the Commissioner acting for the Fifth District was 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. Both of the respondent insurers have petitioned for review from the May 25, 1993 Finding and Award of the Commissioner for the Fifth District. They argue that the commissioner improperly determined the claimant’s wage earning capacity for the purpose of calculating benefits under § 31-308 (a) C.G.S. We affirm the trial commissioner’s decision.

The claimant was employed as a silk screener for four employers, including the respondent employer, between 1982 and 1989. Both of the respondent insurers provided workers’ compensation insurance to the respondent employer during the relevant period. The claimant suffered continuous work-related chemical exposure in the course of his various silk-screening jobs that resulted in his contracting asthmatic bronchitis. The commissioner found that the claimant had suffered a ten percent permanent partial disability of the lungs and, in addition to temporary total and permanent partial disability compensation, the commissioner awarded the claimant temporary partial benefits under § 31-308 (a) at the rate of $250.00 per week. The sole issue argued by the respondents on appeal is that the commissioner improperly determined that the claimant had an earning capacity of $325.00 per week because the claimant had failed to produce evidence that he had maximized his earning capacity.1

At the time of the claimant’s injury, § 31-308 (a) provided that a partially incapacitated claimant was entitled to receive “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 such injury . . . .” The respondents’ argument centers on the phrase “able to earn,” which they claim requires proof that a claimant has maximized his earning potential. Such proof, they claim, was not set forth before the commissioner.

The commissioner found that the claimant was 29 years old at the time of the Finding and Award, and had worked as a waiter and pizza maker along with his experience as a silk-screener. The claimant was a high school graduate whose only additional education consisted of a six-week training course in screen painting, as to which career he was now permanently disabled. The claimant testified that, after leaving silk screening in 1989, he worked at three pizza making jobs and one waitering job, only one of which lasted more than two months due to the claimant’s health problems. That job, a one-year stint at pizza making, paid between $250 and $300 per week. The other jobs had paid between $300 and $400 per week. The commissioner found that the claimant’s earning capacity was between $250 and $400 per week, and used the average of $325 per week in calculating the claimant’s temporary partial disability benefits.

It is true that the commissioner made no specific finding that the claimant was “maximizing” his earning potential after leaving his employment with the respondent. However, nothing in § 31-308 (a) requires such evidence to be presented. Just as the work search procedure has been accepted as evidence of a claimant’s willingness to work, Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 45, 1111 CRD-4-90-9 (Jan. 28, 1992), the performance of a job by a claimant is acceptable evidence of his earning capacity. In this case, the claimant in fact testified that he held four jobs after leaving the respondent’s employment, all of which paid between $250 and $400 per week. The respondents offered no evidence that the claimant in fact had a measurably higher earning capacity, which they certainly could have attempted to do. Compare Donovan v. United Technologies, 7 Conn. Workers’ Comp. Rev. Op. 5, 6, 632 CRD-4-87 (June 9, 1989).

The commissioner was entitled to credit the testimony of the claimant in determining his wage-earning capacity. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Cholewinski v. Brake Systems, Inc., 6 Conn. Workers’ Comp. Rev. Op. 105, 601 CRD-4-87 (Jan. 27, 1989). Furthermore, he was not precluded from averaging the claimant’s salary range in determining his earning potential. Unlike the situation in Morais v. Truelove & Maclean, 4 Conn. Workers’ Comp. Rev. Op. 98, 295 CRD-5-84 (June. 12, 1987), where an award of 2½ percent permanent partial disability of the foot was made where the only medical evidence indicated a 5 percent permanent impairment, the averaging of the claimant’s recent job salaries in this case was a reasonable method of determining what he is capable of earning, as those jobs were representative of the kind of work the claimant is likely to pursue. As we stated above, no finding was made that the claimant is capable of working in a more lucrative field. Because the commissioner’s determination of the claimant’s earning capacity was supported by the evidence, we will not disturb his conclusions. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The trial commissioner’s decision is affirmed.

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

1 Although the respondents raised several issues in their reasons of appeal, only one issue was briefed and argued before this Board. Consequently, we limit our review to that issue. Richardson v. H.B. Sanson, Inc., 6 Conn. Workers’ Comp. Rev. Op. 107, 108 n.1, 590 CRD-1-87 (Feb. 23, 1989.) As to the claimant’s Motion to Dismiss the respondent Hartford Insurance Group’s appeal for failure to file a brief, we note that we do not ordinarily countenance failures to comply with the briefing rules of this Board. Id., 108; see also Practice Book § 4055; Gonzalez v. Meriden-Wallingford Hospital, 10 Conn. Workers’ Comp. Rev. Op. 127, 1178 CRD-8-91-2 (May 21, 1992) (failure of respondents/appellants to file brief resulted in dismissal of appeal). It is poor appellate practice to fail to file a brief, and we strongly disapprove of such neglect. However, as Hartford Insurance Group has moved to adopt the brief of its co-respondents, and the claimant thus has suffered no prejudice from the failure of Hartford Insurance Group to brief its appeal, we decline to grant the Motion to Dismiss in this instance. BACK TO TEXT