Serletti v. City of New Haven

The claimant was represented by James E. Swaine, Esq., Morrison & Swaine, 2 Whitney Ave., New Haven, CT 06510.

The employer was represented by Judith Sarathy, Esq., Office of the Corporation Counsel, 165 Church St., P.O. Box 1790, New Haven, CT 06510.

This Petition for Review from the October 24, 1994 Finding and Dismissal of the Commissioner acting for the Third District was heard June 9, 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 claimant has filed a timely petition for review from the Third District Commissioner’s October 24, 1994 Finding and Dismissal. In that decision, the commissioner determined that the claimant, who had been paid 163 weeks of § 31-308a benefits totaling $41,762.72, was no longer entitled to receive discretionary benefits pursuant to § 31-308a. In support of his appeal, the claimant makes numerous factual arguments regarding his need for continued benefits.

The trial commissioner has discretion to determine the duration of an award under § 31-308a1 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 conclusion regarding eligibility for benefits pursuant to § 31-308a is a factual determination which is considered discretionary. Id. Thus, the question before this board is whether the commissioner abused his discretion in limiting the duration of the claimant’s award. Richmond v. General Dynamics, 1825 CRB-2-93-8 (decided April 27, 1995).

In the instant case, the trial commissioner’s discontinuance of benefits is adequately supported by the record. The claimant had been a firefighter for approximately twenty years prior to his compensable injury. At the time of the formal hearing, the claimant was forty-eight years old, and owned and operated a limousine service at which he worked approximately sixty hours per week. The claimant’s limousine service grossed $108,000.00 in 1993, but showed a yearly loss. (Finding No. 14). The claimant had been paid 163 weeks of benefits pursuant to § 31-308a totaling $41,762.72.2 We find no abuse of discretion in the commissioner’s decision to discontinue such benefits.

We note that the claimant filed a motion to correct the commissioner’s findings of fact. Where the substitution of factual findings would not alter the legal conclusion of the commissioner, a motion to correct the findings may properly be denied. Hill v. Pitney-Bowes, Inc., 8 Conn. Workers’ Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990); see also Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994). Upon review of the corrections sought by the claimant, it is apparent to this board that none of the facts requested in the motion to correct would have an impact on the commissioner’s decision. Accordingly, we find no error in the commissioner’s denial of the claimant’s motion to correct.

The trial commissioner’s decision is affirmed and the claimant’s appeal is dismissed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 [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 We note that the claimant was also paid 156 weeks of compensation for his permanent partial disability. BACK TO TEXT