Curtiss v. State of Conn./Dept. of Mental Retardation Region 2

The claimant was represented by Richard E. Joaquin, Esq., Asselin & Associates, One Courthouse Square, P. O. Box 1, Willimantic, CT 06226.

The Second Injury Fund was represented by J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 22, 1995 Finding and Order of Reimbursement of the Commissioner acting for the Sixth District was heard October 11, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the November 22, 1995 Finding and Order of Reimbursement of the Commissioner acting for the Sixth District. He argues on appeal that the commissioner erred by finding that the claimant had an earning capacity during the time he was receiving total disability benefits for a right hand injury. We affirm the trial commissioner’s decision.

The commissioner found that the claimant suffered several work-related injuries while employed with the state, including one to his right hand on January 12, 1991. This was accepted by voluntary agreement. The claimant received temporary total disability benefits from October 23, 1991 through September 5, 1993 amounting to almost $12,000. In July 1991, he opened up a coin and jewelry shop, from which income was reported to the government from July 1991 to October 1994. A surveillant employed by the state reported that the claimant was working at the store on each occasion an employee of the surveillance company went to the store. The commissioner found that the claimant presented no evidence to dispute the claim that he was not disabled between October 23, 1991 and September 5, 1993, nor did he deny working at the store during that time. The commissioner thus ordered him to pay back the benefits he had received for his right hand injury. The claimant appealed that decision.

The claimant argues that the respondents offered into evidence videotape of the claimant working on six days, the earliest being August 26, 1993. The other five days were in September and October, and were after the claimant had stopped receiving temporary total disability benefits. However, the only evidence of an earning capacity before August 26, 1993 were the aforementioned tax records, which did not specify the dates or weeks in which the income was earned. Those records broke up the claimant’s earnings into three-month periods only. As the claimant was on and off temporary total disability over the course of three years, and the longest single period he collected was eight weeks, the claimant argues that the evidence was insufficient to establish that he was not disabled during that time. Further, he argues that medical evidence supports his claim of total disability.

First, we note that the claimant did not file a Motion to Correct in this case. Thus, the findings must remain intact on appeal. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). We may review only whether the commissioner’s legal conclusions were consistent with those findings. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The findings stated above are reminiscent of those in Granoff v. City of New Haven, 12 Conn. Workers’ Comp. Rev. Op. 166, 1555 CRB-3-92-11 (April 29, 1994), where a trial commissioner had denied temporary total disability benefits to a claimant who operated his own real estate agency while disabled from teaching. Although the claimant argued that income from a business owned by the claimant should not automatically be used to reduce disability, this board held the cases cited by the claimant inapplicable because the commissioner found that the claimant was actively engaged in his real estate business. Id., 168. See also Tessier v. Kogut Florist, 9 Conn. Workers’ Comp. Rev. Op. 276, 277-78, 1088 CRD-8-90-7 (Dec. 13, 1991). We thus affirmed the commissioner’s decision.

Although we indicated in Granoff that the proper focal point was the claimant’s activity rather than earnings received in determining total disability, it is still the claimant’s burden to prove that he is totally disabled as a point of fact. Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 251, 1980 CRB-1-94-3 (Aug. 30, 1995). Given the unchallenged finding that the claimant “did not present any evidence to dispute the claim that he was not totally disabled,” we cannot say on review that the claimant established his case as a matter of law. In fact, it would have been completely up to the trial commissioner to evaluate the medical reports of Dr. Wainwright, the claimant’s treating physician, in order to decide whether or not they established total disability. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). We thus find no error in the commissioner’s order of reimbursement.