Bilotta v. Connecticut Natural Gas

The claimant was represented by Joseph Quinn, Esq., Furniss & Quinn, 248 Hudson St., Hartford, CT 06106.

The respondents were represented by Robert S. Cullen, Esq., Law Offices of Christine Harrigan, CityPlace, 185 Asylum St., Hartford, CT 06103.

This Petition for Review from the February 5, 1997 Finding and Award of the Commissioner acting for the First District was heard October 17, 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 claimant has petitioned for review from the February 5, 1997 Finding and Award of the trial commissioner acting for the First District. In support of his appeal, the claimant contends that the trial commissioner erred in denying his request for the following: (1) temporary partial benefits effective upon the claimant’s retirement; (2) a scarring award; and (3) a permanent partial disability award. We find no error.

The trial commissioner found the following relevant facts. On January 10, 1973, the claimant incurred a left inguinal hernia injury which arose out of and during the course of his employment. The claimant did not lose any time from work and incurred no significant medical expenses. In March of 1982, the claimant underwent surgery to repair the hernia. The claimant continued to feel pain, and again underwent surgery on March 5, 1990. Dr. Bradley, who performed the surgery, explored the previous left inguinal hernia and noted a neroma in the ilioinguinal nerve. The claimant was out of work for approximately six weeks. The claimant testified that when he returned to work after March of 1990, the pain was worse and that he was unable to perform “on call” overtime, although he did perform regular overtime. The claimant retired effective March 31, 1993.

We will first address the claimant’s contention that the trial commissioner erred in denying the claimant’s request for temporary partial disability benefits effective upon the claimant’s retirement on March 31, 1993. Whether a claimant has satisfied the statutory criteria for § 31-308(a) wage differential benefits is a factual determination for the trial commissioner. Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995). The claimant contends that medical records from 1992 and a report from 1995 indicate that the claimant was unable to perform his job duties due to pain from the compensable injury. The trial commissioner specifically found, however, that when the claimant retired on March 31, 1993, there were “no contemporaneous medical reports that indicate that the claimant could not perform his job.” (Finding No. 20) (emphasis added). The trial commissioner further found that there were no witnesses who testified that the claimant indicated to them that he was forced to retire because of the pain.

Moreover, the trial commissioner found that the claimant did not search for work after his retirement. Although our statutes do not require a claimant to perform a work search, it has been accepted as one evidentiary basis to demonstrate willingness to work and the availability of suitable light duty employment. Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996); Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 1111 CRD-4-90-9 (Jan. 28, 1992). In the instant case, the trial commissioner’s determination that the claimant’s retirement was not caused by the compensable injury is based upon the credibility which he accorded the evidence. Accordingly, we may not disturb the trial commissioner’s conclusion. Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994), aff’d., 39 Conn. App. 935 (1995). We conclude that the trial commissioner’s denial of temporary partial disability benefits is fully supported by the record.

Next, we will address the claimant’s contention that the trial commissioner erred in denying his request for a scarring award pursuant to § 31-308a. At the time of the claimant’s January 10, 1973 injury, § 31-308(d) (now § 31-308a) provided that “no compensation shall be awarded... for any scar resulting from an inguinal hernia operation or any spinal surgery.” Based upon the above provision, the trial commissioner concluded that the claimant’s scar was not compensable. In support of his appeal, the claimant contends that he is entitled to a scarring award for the March 5, 1990 surgery because that surgery was exploratory in nature and more extensive than the surgery of 1982. We disagree. The medical evidence supports the trial commissioner’s determination that the March 5, 1990 surgery constituted an inguinal hernia operation. The trial commissioner properly denied the claimant’s request for a scarring award based upon the statutory language prohibiting an award for “any scar resulting from an inguinal hernia operation.”

Finally, the claimant contends that the trial commissioner erred in failing to award a permanent partial disability pursuant to § 31-308(b). The trial commissioner specifically found that no award could be made at that time because the parties had not requested said award. The trial commissioner’s decision does not deny the claimant the opportunity to request a decision regarding permanent partial disability.