Rodriguez v. Remington Products

The claimant was represented by Robert Sheldon, Esq., Tremont & Sheldon, P.C., 65 Lyon Terrace, Bridgeport, CT 06604.

The respondents were represented by James Moran, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.

This Petition for Review from the May 10, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard May 10, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the May 10, 1995 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the commissioner erroneously failed to take a prior settlement into account in awarding the claimant permanent partial impairment benefits, and that he erred by awarding her discretionary benefits under § 31-308a. After considering these arguments, we affirm the trial commissioner’s decision.

The trial commissioner found that the claimant originally injured her right shoulder and right upper extremity while working for Bryant Electric Company on October 4, 1978. She was out of work for four years thereafter, and entered into a stipulation in January 1983 settling her claim for $19,000. The agreement contained an assertion by the claimant that she had a 25 to 30 percent permanent partial disability of her shoulder. The claimant returned to work at the respondent Remington Products in 1982; there, she injured her right elbow on January 9, 1984 while pulling a large wooden skid. The respondents accepted the compensability of the injury, and paid for elbow and hand surgery along with other medical expenses and indemnity benefits.

During the late 1980s, the claimant began to experience problems with the left side of her neck and her left arm. A neurosurgeon, Dr. Lipow, performed an MRI, and recommended surgery on her cervical disc at C6-7. In his opinion, the herniated disc and associated radiculopathy were causally related to her 1984 work injury. The respondents refused to pay for an operation, however, and the surgery was not performed. The claimant also developed numbness and pain in both of her hands, and has had carpal tunnel surgery in response to those symptoms. The claimant was released to return to work on July 1, 1993, and has actively but unsuccessfully looked for work since then.

The trial commissioner concluded that the claimant’s herniated cervical disc and resultant disability were the result of her compensable injury, and ordered the respondents to accept liability for all reasonable and necessary medical expenses. He also awarded the claimant § 31-308a benefits for the weeks from June 1, 1993 to December 8, 1994. The respondents had argued that the claimant was overpaid for her permanent partial disability because the $19,000 stipulation had included 25 to 30 percent disability for her right upper extremity, but the commissioner found that they had not proven that contention. The respondents appealed that decision to this board.1

The respondents argue that the claimant, as per the 1983 stipulation, received compensation for a 25 to 30 percent permanent partial disability of her right upper extremity. She then suffered another injury to the same body part, for which she received indemnity payments that encompassed an additional 30 percent loss of use of her upper extremity. The respondents contend that the claimant has accordingly been substantially overpaid for her injury, and that the commissioner should have granted their Motion to Correct awarding the respondents credit for 93.6 weeks of benefits.

This board has taken notice in past cases of the policy prohibiting “double recovery” under our Workers’ Compensation Act. See Mann v. Morrison-Knudsen/White Oak, 14 Conn. Workers’ Comp. Rev. Op. 79, 80-81, 1918 CRB-1-93-12 (May 12, 1995). Section 31-349(a) C.G.S. provides that compensation benefits paid on account of a prior disability shall be deducted from compensation paid for a permanent disability resulting from a combination of the prior disability and a subsequent injury. However, it is incumbent upon the party seeking the credit to prove that the claimant has been partially compensated for a disability.

The trial commissioner found here that the claimant had entered the notation “T/L” on her job application in reference to her torn shoulder ligament surgery, and that she had asserted in the prior stipulation that she had a permanent partial disability of the right shoulder. However, the commissioner also denied the respondents’ request to correct the findings to reflect that they had paid “specific compensation benefits for 30% loss of use of the right master arm.” In fact, no finding was made as to the degree of disability suffered by the claimant as a result of the 1984 injury--nor was a finding made that said injury and the 1978 injury combined to produce the claimant’s current disability. As the claimant points out, the respondents also did not show that any specific payment was made on account of permanency in the 1983 settlement. That agreement merely states that certain conditions are “alleged to have caused permanent disability of the right shoulder of 25 to 30%.” (Respondents’ Exhibit 1).

We cannot speculate on review as to the nature of the $19,000 payment made to the claimant in 1983. It is not evident that the alleged permanency was accepted, or that any part of the $19,000 was made in consideration of such. Furthermore, the trial commissioner seems to have located the compensable injury at the claimant’s cervical disc, rather than at her right arm. His denial of the respondents’ aforementioned correction supports that fact. It is an axiom in workers’ compensation proceedings that the trial commissioner is the one charged with determining the facts of a case and weighing the credibility of the evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). We therefore must affirm his decision to dismiss the respondents’ claim for a credit against the claimant’s award.

The respondents also argue that the commissioner improperly awarded the claimant discretionary benefits under § 31-308a because her job search applications were incomplete and because the commissioner did not consider the requisite statutory factors in making his determination. Pursuant to the statute, the commissioner must consider the nature and extent of the claimant’s injury, her training, education, and experience, and the availability of work for people with her physical condition and at her age before making a decision on a § 31-308a award. Boughton v. Kimberly Clark Corp., 14 Conn. Workers’ Comp. Rev. Op. 4, 5, 1871 CRB-7-93-10 (April 28, 1995). Generally, unless improper factors are considered in that decision, this board will not find that the fact-finder has abused his or her discretion. Johnston v. Thames Permacrete Corp., 2278 CRB-2-95-2 (decided Aug. 16, 1996).

Although the claimant filed a multitude of job search forms, she did not list the name of the specific person she had contacted at each establishment, making it difficult to verify her searches. (Claimant’s Exhibit A). That does not mean, however, that the commissioner should have disregarded that evidence. As we stated above, it is the commissioner who determines credibility issues, such as whether or not the claimant actually made a good faith effort to look for work. Webb, supra; Johnston, supra. The commissioner was within his authority in determining from the evidence here that the claimant tried to find a job once she was released for light duty work. Even though he did not recite the other statutory factors specifically in his decision, such as the claimant’s age and training, the circumstances of this case provide adequate support for the award. There was evidence to support both the existence of a disability and the unavailability of work for the claimant.

The trial commissioner’s decision is affirmed.2

Commissioners George A. Waldron and Robin L. Wilson concur.

1 The respondents also took issue with the commissioner’s finding that the herniated cervical disc was related to the compensable injury in their Reasons for Appeal. As that claim of error was not briefed, we will not address it on appeal. See Maio v. L.G. Defelice, Inc., 13 Conn. Workers’ Comp. Rev. Op. 197, 198 n.1, 1734 CRB-5-93-5 (March 22, 1995) (issues not briefed deemed abandoned). BACK TO TEXT

2 The respondents have appealed the commissioner’s award and lost. If any amount of the award due the claimant was not paid to her pending the outcome of the appeal, the respondents are ordered to add interest onto the amount of the award pursuant to § 31-301c(b). BACK TO TEXT