Higbie v. UTC/Pratt & Whitney

CASE NO. 2147 CRB-8-94-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 28, 1996

MICHAEL HIGBIE

CLAIMANT-APPELLEE

v.

UTC/PRATT & WHITNEY

EMPLOYER

and

CIGNA PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Kevin Coombes, Esq., McCarthy, Schuman & Coombes, 107 Oak Street, Hartford, CT 06106.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the September 12, 1994 Finding and Award of the Commissioner acting for the Second District was heard December 1, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the September 12, 1994 Finding and Award of the Commissioner acting for the Second District. In that decision, the trial commissioner awarded the claimant thirty-five weeks of § 31-308a1 benefits for the period commencing June 1, 1991. The respondents argue on appeal that the commissioner improperly ruled that the claimant was entitled to § 31-308a benefits.

The trial commissioner made the following relevant findings of fact. The claimant sustained an injury to his neck on January 14, 1989, which is the subject of an approved voluntary agreement. As a result of the injury, the claimant underwent surgery on March 26, 1989 for the removal of a herniated disc and fusion by Dr. Moskowitz. Dr. Moskowitz opined that the claimant reached maximum medical improvement on August 16, 1989 and assessed a fifteen percent permanent partial impairment of the cervical spine. Subsequently, Dr. Moskowitz increased the assessment to twenty percent, which was the subject of a second voluntary agreement. Effective December 27, 1990 Dr. Moskowitz released the claimant to restricted duty. The claimant returned to work on two occasions, but stopped working due to neck pain. Subsequently, after viewing a video of the claimant which showed the claimant lifting a bag of lyme and a dog out of a car, Dr. Moskowitz again released the claimant to light duty on May 29, 1991. The claimant was examined by six physicians, none of whom disabled the claimant from working.2 (Findings No. 31-36). The trial commissioner found that based upon the “reports of all the physicians and the evidence supplied on the video tape, it is clear that the Claimant had a light-duty work capacity on May 29, 1991 as indicated by Dr. Moskowitz.”

On May 29, 1991, the employer’s personnel director advised the claimant that there was light duty within the restrictions noted by Dr. Moskowitz in his May 22, 1991 report. The claimant replied that he had been disabled by doctors and that he would produce a report from Dr. Moskowitz which would rescind his release to light duty. However, Dr. Moskowitz did not rescind the release to light duty. The business unit manager for the employer testified that the employer had a light duty return-to-work policy; that light duty within the restrictions of Dr. Moskowitz was available; and that he told the claimant that such light duty work was available. The claimant received unemployment benefits, accident and sickness benefits, and social security benefits before he returned to work at $380 per week with another employer, CNA, in March of 1993.

The commissioner has discretion to determine whether to award benefits under 31-308a based upon factors such as the employee’s age, training, education, marketability, and the severity of his injury. 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’s conclusions regarding those factors are factual determinations. Id. Thus, the question before this board is whether the commissioner’s award of 31-308a benefits is supported by the record, or whether the commissioner abused his discretion in making the award. This board has stated:

The commissioner has discretion to award § 31-308a benefits when a claimant’s earning capacity has been adversely affected by a work-related injury. Burgos v. United Technologies/ Sikorsky Aircraft Division, 12 Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 1994). A claimant whose earning capacity is not impaired, however, is not entitled to benefits under that section. The offer of a job to a claimant has been held to be sufficient evidence of the type of work that a claimant was capable of performing. Id. Furthermore, the failure of a claimant to search for work has been held fatal to a claim for benefits under § 31-308a.

Wrighten v. Burns International Security, 13 Conn. Workers’ Comp. Rev. Op. 173, 176, 1659 CRB-2-93-2 (March 10, 1995).

In Wrighten, supra, this board reversed a trial commissioner’s award of 31-308a benefits where the trial commissioner had found that the claimant was capable of performing a job that the employer offered him, which the claimant effectively turned down by not coming to work. Moreover, this board has stated that benefits under 31-308a are not warranted “if the claimant was capable of gainful employment but simply chose not to pursue it.” Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994).

In the instant case, the trial commissioner awarded thirty-five weeks of benefits pursuant to 31-308a commencing June 1, 1991. The trial commissioner further found that the claimant demonstrated an earning capacity of $380 per week, and thus calculated his benefit rate under 31-308a to be $106 per week. The record does not support the trial commissioner’s award. Specifically, the trial commissioner found that the claimant was capable of light duty work as of May 29, 1991 and also found that the employer offered the claimant light duty employment within his treating physician’s restrictions. (Finding No. 19). Accordingly, it was an abuse of discretion for the trial commissioner to award the claimant any benefits under 31-308a. See Wrighten, supra; Vuoso, supra.

The trial commissioner’s award of § 31-308a benefits is reversed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 Section 31-308a provides in relevant part: [T]he commissioner . . . may award additional compensation benefits for such partial permanent disability equal to two-thirds [now seventy-five percent] 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 weekly amount which such employee will probably be able to earn thereafter, . . . to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and the employee’s age. . . . The duration of such additional compensation shall be determined upon a similar basis by the commissioner.” BACK TO TEXT

2 The claimant was examined by Dr. Gossling on August 20, 1990 who was at a loss to explain the claimant’s complaints of pain (Finding No. 32); the claimant was examined by Dr. Barnett on November 5, 1991 who opined that the claimant was capable of gainful employment with some restrictions (Finding No. 34); the claimant was examined by Dr. Dugdale on December 12, 1990 who found that the claimant was capable of returning to regular work (Finding No. 35). BACK TO TEXT