CASE NO. 3607 CRB-05-97-05
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 15, 1998
CRAWFORD & CO.
SECOND INJURY FUND
The claimant was represented by David C. Leard, Esq., Manasse, Slaiby & Leard, 459 Prospect Street, P.O. Box 1104, Torrington, CT 06790.
The Nidec Corporation and Crawford & Co. were represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.
The Second Injury Fund was represented by Taka Iwashita, Esq.,Assistant Attorney General, P.O. Box 120, 55 Elm St., Hartford, CT 06141-0120, who did not appear at oral argument as the Fund previously withdrew its appeal.
This Petition for Review from the May 9, 1997 Finding and Award of the Commissioner acting for the Fifth District was heard January 23, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.
JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer (“respondents”) have petitioned for review from the May 9, 1997 Finding and Award of the trial commissioner acting for the Fifth District. In that decision, the trial commissioner found that the claimant was temporarily totally disabled, and awarded ongoing benefits pursuant to § 31-307. In support of their appeal, the respondents contend that the record does not support the trial commissioner’s conclusion that the claimant was totally disabled, and further contend that the trial commissioner was required to limit the award of temporary total benefits to the date of the last formal hearing.
The trial commissioner found the following relevant facts. On June 28, 1990, the claimant sustained a compensable injury to her right shoulder in the form of a rotator cuff tear. As a result, the claimant underwent two surgical procedures resulting in a twenty percent permanent partial disability of her right master arm. As a result of her employment, the claimant also sustained bilateral carpal tunnel which required three surgical procedures and caused permanent partial disabilities of both hands. Pursuant to § 31-349, the claimant’s right shoulder injury was transferred to the Fund effective May 10, 1993, on the basis that the claimant had a preexisting osteophyte formation. Subsequent to June 28, 1990, the claimant began treating for cervical spine problems. The claimant’s treating physician, Dr. McCoy, an orthopedic surgeon, opined that the claimant suffered from cervical spondylosis that preexisted the June 28, 1990 accident. Dr. McCoy further opined that although her neck problems were not a result of the June 28, 1990 injury itself, the symptoms were aggravated by the existing shoulder difficulties. The trial commissioner concluded that the claimant’s cervical spine problem was causally related to her right shoulder injury.
Dr. McCoy opined in a report dated June 16, 1993 that the claimant was functionally not capable of any degree of work as she was unable to use her right extremity and that any type of repetitive use would aggravate her problems. (Finding No. 22). The trial commissioner ordered an examination of the claimant by a Vocational Rehabilitation Specialist, Dr. Cohen, Ph.D. Dr. Cohen opined that the claimant was not employable for the following reasons: she has few transferable skills; she has limited academic preparation; she scored low in her career abilities testing; the degree of permanent partial disability in her cervical spine, right upper extremity and both wrists; the remote likelihood that an employer would be able or willing to accommodate the workplace for her; and Dr. Cohen’s search of the job market which yielded very few open job possibilities. (Finding No. 26).
We will first address the respondents’ contention that the claimant’s failure to conduct a work search made her ineligible for total disability benefits, citing Osterlund v. State, 135 Conn. 498 (1949). Whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). Upon review of the factual issues underlying this determination, we will only disturb the commissioner’s decision if his conclusions were contrary to law, or based on impermissible or unreasonable factual inferences. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
Here, although the claimant may have had a theoretical light duty capability, the commissioner found that her physical restrictions, age, limited education, and other factors severely curtailed her employability. The commissioner also found that the claimant had no readily transferable skills, and that these factors rendered her labor unmarketable when combined with the physical restrictions resulting from her injuries. This conclusion is supported by the opinions of Dr. McCoy and Dr. Cohen, Ph.D, Vocational Rehabilitation Specialist. As the record adequately supports the factual findings of the commissioner, we will not disturb them. Fair, supra.
We have previously addressed the issue of whether a claimant’s failure to conduct a work search is fatal to a claim for temporary total disability benefits in the case of Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 1980 CRB-1-94-3 (Aug. 30, 1995). We explained in Rose, the following:
In Osterlund, supra, our Supreme Court stated that “[a] finding that an employee is able to work at some gainful occupation within his reasonable capacities is not in all cases conclusive that he is not totally incapacitated. If, though he can do such work, his physical condition due to his injury is such that he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.” Osterlund, supra, 506-07. Normally, this Commission prefers to use the work search procedure as an evidentiary basis to demonstrate a willingness to work and/or the unavailability of work. Boughton v. Kimberly Clark Corp., 14 Conn. Workers’ Comp. Rev. Op. 4, 1871 CRB-7-93-10 (April 28, 1995); Wrighten v. Burns International Security, 13 Conn. Workers’ Comp. Rev. Op. 173, 1659 CRB-2-93-2 (March 10, 1995). However, a work search is not specifically required by the statute, as it is conceivable that a commissioner could find that a claimant was willing to work, but that a job search would be utterly futile given the claimant’s limited abilities. See Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 1721 CRB-2-93-5 (March 22, 1995).
Rose, supra, at 251-52 (emphasis added).
Next, the respondents contend that a trial commissioner does not have the authority to award benefits for temporary total disability beyond the date of the last evidentiary hearing, citing Cummings v. Twin Tool Manufacturing Company, Inc., 40 Conn. App. 36 (1996). The trial commissioner concluded that the claimant was temporarily totally disabled and awarded temporary total disability benefits “until further order of the Workers’ Compensation Commission.”
In Morris v. A & A Acoustics, 3429 CRB-7-96-9 (decided Aug. 8, 1997) we concluded that the Appellate Court’s decision in Cummings, supra, did not take away the discretion of a trial commissioner to award continuing temporary total disability benefits, which discretion has long been utilized by trial commissioners in Connecticut. Specifically, in Morris we explained that our Supreme Court has repeatedly recognized that the trial commissioner has the discretion to award ongoing benefits for temporary total disability beyond the date of the last evidentiary hearing. Morris, supra, citing Morisi v. Ansonia Mfg. Co., 108 Conn. 31 (1928); Reilley v. Carroll, 110 Conn. 282 (1929); English v. Manchester, 175 Conn. 392 (1978).
Furthermore, the review board explained that the “law requires that the employer will be monitoring the status of the case concerning the employee’s incapacity status, and it is presumed that the employer would know when the employee will be returning to work.” Morris, supra, citing Platt v. UTC/Pratt & Whitney Aircraft Division, 3 Conn. Workers’ Comp. Rev. Op. 3, 9, 164 CRD-6-82 (Aug. 16, 1985). At that point, it becomes incumbent upon the respondent to file a Form 36. Indeed, attending physicians in workers’ compensation cases have an ongoing obligation to assess the claimant’s ability to return to work and to report such information to the employer or its insurer. Platt, supra, at 9, fn. 8, citing § 31-279-9. This practice clearly supports the humanitarian purpose of the Workers’ Compensation Act by allowing trial commissioners to award ongoing benefits where the medical evidence indicates that a claimant will continue to be temporarily totally disabled after the close of the last evidentiary hearing.
We will next address the respondents’ contention that because the shoulder injury and the cervical injury have been transferred to the Fund, that therefore the respondents should only be responsible for the portion of temporary total disability benefits attributable to the injuries which did not transfer. The trial commissioner specifically found that the parties failed to submit evidence regarding the degree to which each injury contributed to the claimant’s temporary total disability, and thus held that said apportionment may be the subject of further proceedings. Accordingly, it is not an issue before this board at this time.
Finally, we will address the respondents’ contention that the trial commissioner erred in denying their Motion to Correct. A Motion to Correct may be denied where the legal conclusion of the commissioner would not be altered by the substituted findings. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). We find no error in the commissioner’s denial of the respondents’ Motion to Correct.
The trial commissioner’s decision is affirmed.
Commissioners Michael S. Miles and Stephen B. Delaney concur.