Merola v. The Jackson Newspaper, Inc.

The claimant was represented by Elizabeth Gallagher, Esq., Gallaher, Gallagher & Calistro, 1377 Boulevard, P. O. Box 1925, New Haven, CT 06509.

The respondents were represented by Dominick C. Statile, Esq., Montstream & May, 655 Winding Brook Drive, P. O Box 1087, Glastonbury, CT 06033.

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

This Petition for Review from the May 15, 1996 Finding and Award of the Commissioner acting for the Third District was heard February 28, 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 respondents have petitioned for review from the May 15, 1996 Finding and Award of the Commissioner acting for the Third District. They contend on appeal that the trial commissioner erred by awarding the claimant benefits under § 31-308a C.G.S. We affirm the trial commissioner’s decision.

The claimant suffered an accepted right master hand crush injury on April 6, 1986. The hand is currently 70% permanently disabled, and a total of 218.4 weeks of permanent partial disability benefits have been paid on that appendage. Through October 1994, the claimant had also received 203.7 weeks of discretionary benefits under § 31-308a. He claimed additional discretionary benefits at the formal hearing below, despite not actively seeking employment. The claimant has to use a prosthesis on the stump of his hand, which gives him difficulty, and claims that he cannot work on a regular basis because his hand is easily fatigued.

The commissioner found that the claimant’s injury predated the July 1, 1993 amendment to § 31-308a restricting the duration of discretionary benefits to the number of weeks of permanent partial disability benefits, and that the statutory change was inapplicable to the claimant. That conclusion is legally correct. Johnston v. Thames Permacrete Corp., 15 Conn. Workers’ Comp. Rev. Op. 402, 2278 CRB-2-95-2 (Aug. 16, 1996). He then awarded the claimant 52 weeks of additional benefits payable from the date of the last § 31-308a order, noting that “the claimant shall not be required to job search . . . considering the claimant’s age, education, extent of his injury to his right master hand along with claimant’s prior work experience all considered in relation to what the claimant probably would be able to earn currently with his medical/physical restrictions . . . .” The respondents have appealed that decision to this board.

“The failure of a claimant to look for work or accept offered employment has often been cited as a reason to deny benefits under § 31-308a. However, the statute does not specifically require the claimant to seek work, and a job search is not the only evidentiary means by which a commissioner may determine that a claimant qualifies for a discretionary award of benefits.” Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 195, 1721 CRB-1-93-5 (March 22, 1995) (internal citations omitted); see also Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 45, 1111 CRD-4-90-9 (Jan. 28, 1992). As long as the trial commissioner considers the proper statutory factors in his decision and focuses on the claimant’s earning capacity, this board will not tamper with his judgment to award § 31-308a benefits. Kulhawik v. Ace Beauty Supply, 15 Conn. Workers’ Comp. Rev. Op. 159, 160, 2116 CRB-2-94-8 (Feb. 1, 1996).

Here, the trier noted that the claimant attempted to return to work driving a handicap van, but had to stop because he discovered he could not properly operate the van or ensure the safety of his passengers. The claimant testified that he felt that he had no choice but to stop looking for work, as every place where he applied for a job turned him down because of his physical limitations. November 29, 1995 Transcript, p. 31. His wife also testified that the claimant looked for other jobs, but could not physically perform them. Id., 43. Given the nature of the claimant’s injury and its severity, we do not believe the commissioner erred by awarding the claimant further § 31-308a benefits without requiring another work search. “The law does not require a fruitless work search when work seeking efforts already performed have demonstrated the unavailability of work.” Dextraze v. Lydall, Inc., 14 Conn. Workers’ Comp. Rev. Op. 52, 56, 1615 CRB-2-92-12 (May 10, 1995); see also Shimko v. Ferro Corp., 40 Conn. App. 409 (1996).

However, the fact still remains that § 31-308a benefits are intended as compensation for a claimant who wants employment, but is unable to work. The claimant testified that he was already 65 years old as of November 22, 1995, and that at the time he was injured, he had planned on retiring at age 65. (Transcript, p. 6, 28). Plaintiff’s Exhibit 4 lists his date of birth as August 8, 1930. Testimony reflects that the claimant began receiving retirement social security when he reached age 65. Transcript, 44. The § 31-308a award would not have run out until the end of September 1995.

The Workers’ Compensation Act reduces total incapacity compensation by the amount of old age benefits a claimant receives pursuant to the federal Social Security Act. § 31-307(e). Although this Commission does not evaluate a claimant’s disability by the same standards that the SSA uses, see Krajewski v. Atlantic Aerospace Textron, 15 Conn. Workers’ Comp. Rev. Op. 44, 46, 2120 CRB-6-94-8 (Nov. 28, 1995), we do recognize that the SSA does not pay retirement benefits to individuals who are regular members of the work force. See 42 U.S.C. §§ 401 et seq., especially § 402(a), § 403, § 416(l)(1)-(2). The claimant’s receipt of Social Security retirement benefits suggests that he now considers himself retired, and it is undisputed that he is no longer looking for work. The commissioner would have been better advised to limit the § 31-308a award to the period of time before the claimant’s 65th birthday, and to require the claimant to make a separate showing that circumstances warranted further § 31-308a benefits for any period of time postdating his 65th birthday. Although we do not find reversible error here, this principle should be used as a guide in future cases.