Kropf v. Lloyd Davis, D.D.S.

The claimant was represented by David Kelly, Esq., Montstream & May, 655 Winding Brook Dr., P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondent employer and CNA were represented by Howard Levine, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main St., West Hartford, CT 06107-2445.

The respondent Chubb Insurance Co. was represented at the trial level by John Figlar, Esq., P.O. Box 1903, New Haven, CT 06509, who did not appear at oral argument.

This Petition for Review from the December 6, 1995 Finding and Award of the Commissioner acting for the Eighth District was heard January 10, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer and CNA Insurance (hereinafter “respondents”) have petitioned for review from the December 6, 1995 Finding and Award of the Commissioner acting for the Eighth District. In that decision, the trial commissioner found that due to compensable bilateral carpal tunnel, the claimant, a dental hygienist, was not able to work her normal schedule of four days per week. The trial commissioner thus awarded the claimant benefits pursuant to § 31-308(a) due to the reduction in wages caused by her compensable injury. In support of their appeal, the respondents contend that the trial commissioner erred in awarding § 31-308(a) benefits because the claimant did not maximize her earning ability. In addition, the respondents contend that the trial commissioner erred in computing the weekly benefit rate pursuant to § 31-308(a). We find no error on the part of the trial commissioner.

The trial commissioner found the following relevant facts. On April 29, 1991 the claimant sustained bilateral carpal tunnel which was accepted as compensable by the respondents. Prior to the injury, the claimant, a dental hygienist, had an average weekly wage of $790.00 for four days of work per week.(Finding No. 2; 1/9/95 TR. at p. 22). The claimant underwent surgeries of both hands, and was temporarily totally disabled until April 5, 1994. Effective April 5, 1994, Dr. Bradburn released the claimant to work as a dental hygienist with the restriction of two half days per week. The claimant returned to the respondent employer pursuant to this restriction. Effective June 1, 1994, Dr. Bradburn modified the restriction to two full days per week. The claimant gradually increased her work hours, and in the twelve work weeks from early October 1994 through the end of the year the claimant earned an average of $441.99 per week. The trial commissioner awarded the claimant benefits pursuant to § 31-308(a) for the period from April 6, 1994 through January 9, 1995 at a rate of $265.00 per week.

Section 31-308(a) as it existed at the time of the claimant’s injury provided for “a weekly compensation equal to sixty-six and two-thirds per cent 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 amount he is able to earn after the injury...” This section provides compensation for a claimant who “is able to do some work but unable fully to perform his customary work.” Shimko v. Ferro Corp, 40 Conn. App. 409, 412 (1996) (citing Hansen v. Gordon, 221 Conn. 29, 39 (1992)).

The record in the instant case supports the trial commissioner’s award of § 31-308(a) benefits, as the claimant was unable to work her normal four day week and the claimant returned to work with the employer within Dr. Bradburn’s medical restrictions. As the finder of fact, the trial commissioner was charged with determining the weight and credibility of the testimony and medical evidence. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995). It was thus within the discretion of the trial commissioner to rely upon the opinion of Dr. Bradburn. Moreover, the record supports a conclusion that the claimant’s return to work demonstrated that she adequately sought work within her restrictions.

Finally, we will address the respondents’ contention that the trial commissioner erred in computing the weekly benefit rate pursuant to § 31-308(a). The respondents’ contention that the trial commissioner should have computed the weekly compensation rate by using the claimant’s weekly wage of $441.99 is seriously flawed. The respondents’ reasoning is flawed because they neglect to include the fact that the claimant did not earn $441.99 per week for all of the period at issue. The trial commissioner found that the claimant earned an average of $441.99 for the period from October 1994 through the end of the year. (Finding No. 19). During said period, the claimant was working over two full days per week. However, the claimant was initially released to only two half days per week effective April 5, 1994. Thereafter, the claimant was released to two full days effective June 1, 1994. By including the claimant’s various weekly earnings for the period from April 5, 1994 though January 9, 1995, the trial commissioner properly determined the claimant’s average benefit rate pursuant to § 31-308(a) to be $265.00 per week. (See Claimant’s Exhibit D, E and F).