Boughton v. Kimberly Clark Corp.

The claimant was represented by Ross T. Lessack, Esq., Law Offices of Edward T. Dodd, Jr., 700 West Johnson Avenue, Cheshire, CT 06410.

The respondent was represented by Thomas Arlingham, Esq. and Philip F. Spillane, Esq., Baker, Moots & Pellegrini, P.C., 46 Main St., New Milford, CT 06776.

This Petition for Review from the October 1, 1993 Findings and Dismissal of the Commissioner acting for the Seventh District was heard October 7, 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.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 1, 1993 Findings and Dismissal of the Commissioner for the Seventh District. She argues on appeal that the commissioner improperly concluded that she was not entitled to benefits pursuant to § 31-308a C.G.S. We affirm the trial commissioner’s conclusion.

The commissioner found that the claimant sustained compensable injuries to her right foot and left knee on April 18, 1988, which injuries were accepted by the respondent. Voluntary agreements established a 21.5 percent permanent partial disability of the left knee and a 10.5 percent permanent partial disability of the right foot. The claimant received separate specific indemnity awards as a result of those injuries. There was a four-month gap between the expiration of the first specific award and the commencement of the second award.

The commissioner found that the claimant retired from her employment with the respondent on August 11, 1989, based on years of service rather than disability. Her physician indicated that the claimant was capable of sedentary light duty employment during the three and one-half years following her retirement. The claimant did not seek work after August 11, 1989, nor did she submit job search forms or attempt job retraining with the Division of Workers’ Rehabilitation. She also failed to submit medical reports in support of her claim for temporary total disability benefits after the expiration of her specific indemnity awards. The commissioner concluded that the claimant had not met her burden of proof as to entitlement to temporary total disability benefits or § 31-308a benefits. The claimant has appealed the denial of § 31-308a benefits.

At the time of the claimant’s injury, § 31-308a provided “the commissioner . . . may award additional compensation benefits for [a claimant’s] partial permanent disability . . . to be determined by the commissioner based upon 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 . . . .” The claimant argues that this statute does not require work searches in order for a claimant to be eligible for benefits, and that the claimant in any event was unemployable based on her age, education and lack of skills suitable to sedentary work. According to the claimant, she would have retired when she turned 65 on May 5, 1992 if she had not injured her knee and foot. She therefore claims to be entitled to § 31-308a benefits for the four-month period between specific indemnity awards and the 74-week period between the expiration of the second indemnity award and May 5, 1992.

As the language of § 31-308a suggests, it is within the discretion of the trial commissioner to award benefits under that section. Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 180, 876 CRD-6-89-6 (Aug. 13, 1991). The commissioner is entitled to withhold benefits under § 31-308a if a claimant is capable of gainful employment, but simply chooses not to pursue it. Vuoso v. Custom Gunite Pools, 1581 CRB-7-92-12 (Dec. 7, 1994). Although not a part of the statute, the work search procedure has been accepted by this Commission as an evidentiary basis to demonstrate a willingness to work, and when no work is found, a further basis to demonstrate the unavailability of work. Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 45, 1111 CRD-4-90-9 (Jan. 28, 1992). The commissioner must determine as a factual matter whether a claimant has proven a loss of earning capacity and whether a claimant has met the employability restrictions of § 31-308a. Vuoso, supra; Lageux, supra.

Here, the commissioner found that the claimant had not filed medical reports in support of her claim for temporary total disability benefits. This finding is not challenged by the claimant. The commissioner also found that the claimant was capable of sedentary employment after retiring from her employment with the respondent, which is supported by the reports of the claimant’s treating physician, and that she did not attempt to seek employment elsewhere in the community. The commissioner is entitled to assess the weight and credibility of the evidence and testimony presented. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). She was thus not required to rely on the claimant’s testimony that she retired because of her injuries and that she did not look for work because she was unemployable based on her age, training and physical condition.

There was sufficient evidence from which the commissioner could conclude that the claimant was not entitled to discretionary benefits under § 31-308a. We will not substitute our own conclusions for hers. Vuoso, supra. It does not appear that the commissioner considered improper factors in making her decision, nor was that decision contrary to law. Therefore, we must uphold the denial of benefits.