Lyons v. Wasley Products, Inc.

The claimant was represented by Richard Zayas, Esq., 83 Oak Street, Hartford, CT 06106, who did not appear at oral argument.

The employer and CNA Insurance were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The respondent AON Risk Services was represented by Angelo Paul Sevarino, Esq., 110 Day Hill Road, Windsor, CT 06095-1794.

This Petition for Review from the March 6, 1998 Finding and Award of the Commissioner acting for the Sixth District was heard January 8, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 6, 1998 Finding and Award of the Commissioner acting for the Sixth District. In support of her appeal, the claimant contends that the trial commissioner erred in (1) denying her request for temporary total disability benefits or in the alternative § 31-308a benefits; (2) finding that Dr. Owens was not an authorized treater; and (3) denying the claimant’s request to reopen an approved voluntary agreement in order to increase her permanent partial disability ratings. The claimant has also submitted a Motion to Submit Additional Evidence. We find no error.1

First, we will address the claimant’s argument that she is entitled to temporary total disability benefits. Section 31-307 provides benefits when a compensable injury results in a claimant’s “total incapacity to work.” Whether a claimant is totally disabled from working 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). We will not disturb a trial commissioner’s factual determination unless the conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In the instant case, the trial commissioner’s denial of temporary total disability benefits pursuant to § 31-307 is fully supported by the record. Specifically, the trial commissioner found that the claimant had a light duty capacity pursuant to the opinion of the claimant’s treating physician, Dr. Raycroft.

Second, we will address the claimant’s argument that she is entitled to § 31-308a benefits. The award of benefits pursuant to § 31-308a is a discretionary award, which may not be reversed absent a commissioner’s abuse of discretion. Kulhawik v. Ace Beauty Supply, 15 Conn. Workers’ Comp. Rev. Op. 159, 160, 2116 CRB-2-94-8 (Feb. 1, 1996); Richmond v. General Dynamics Corp./Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 345, 1825 CRB-2-93-8 (April 27, 1995). Here, the trial commissioner clearly considered all of the statutory factors, including the age, training, education and experience of the claimant. We find no abuse of discretion regarding the trial commissioner’s denial of benefits, and note that the denial of said benefits is supported by the claimant’s failure to look for work or to make any effort regarding vocational rehabilitation.

We find no merit to the claimant’s contention that the medical services of Dr. Owens should be authorized. The trial commissioner specifically found that the claimant’s treating physician was changed from Dr. Owens to Dr. Raycroft on April 25, 1994. The claimant does not dispute that fact, and has not filed a Motion to Correct. We thus find no error in the trial commissioner’s refusal to authorize treatment from Dr. Owens. See Mahoney v. Bill Mann Tree Service, 16 Conn. Workers’ Comp. Rev. Op. 17, 3025 CRB-4-95-3 (Oct. 4, 1996).

We will now address the claimant’s contention that the trial commissioner erred in denying the claimant’s request to reopen the voluntary agreement which was approved on September 7, 1995 in order to increase her permanent partial disability ratings. Section 31-315 permits modification of an award or a voluntary agreement if the claimant’s condition changes, or if changed conditions of fact arise which necessitate an alteration of the agreement to further the spirit of the Workers’ Compensation Act. Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541 (1992). The determination of whether changed conditions of fact exist which support a reopening of a voluntary agreement is a question of fact. Knudsen v. GSD Inc., 8 Conn. Workers’ Comp. Rev. Op. 81, 829 CRD-8-89-3 (May 9, 1990). We have stated that the decision whether to open a stipulated agreement falls within the trier’s discretion and will be overturned only if such discretion was abused or an unreasonable result was reached. Wallin v. Danbury, 14 Conn. Workers’ Comp. Rev. Op. 353, 1940 CRB-7-93-11 (September 22, 1995); Gonzalez v. Electric Transport (Penske), 13 Conn. Workers’ Comp. Rev. Op. 6, 1729 CRB-1-93-5 (October 13, 1994).

In support of her appeal, the claimant reiterates the arguments made before the trial commissioner regarding her request to reopen the voluntary agreement. (See Finding No. 39). The trial commissioner’s decision not to reopen the voluntary agreement was based upon his finding that the claimant’s permanent partial disability ratings had not changed. This factual finding is supported by the opinion of Dr. Raycroft. We find no error in the trial commissioner’s conclusion that the claimant did not have sufficient reason pursuant to § 31-315 to reopen the approved voluntary agreement.

Finally, we will address the claimant’s Motion to Submit Additional Evidence, in which the claimant seeks to present a Social Security Administration Decision dated February 6, 1998. The claimant contends that this decision was not available until after the close of the formal hearing, and that it is material because the findings in the Social Security decision are contrary to the findings made by the trial commissioner. We have repeatedly held that decisions regarding Social Security are not material to workers’ compensation claims insofar as the standards used by the Social Security Administration differ from those used by the Workers’ Compensation Commission. Krajewski v. Atlantic Aerospace Textron, 15 Conn. Workers’ Comp. Rev. Op. 44, 2120 CRB-6-94-8 (Nov. 28, 1995). In the instant case, the trial commissioner’s decision was based upon his assessment of the evidence and is fully supported by the record and thus the Social Security decision would not have affected that reasoning. We deny the claimant’s Motion to Submit Additional Evidence.

The decision of the trial commissioner is affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 As the claimant has not filed a Motion To Correct pursuant to Admin. Reg. § 31-301-4, this board is strictly limited to the trier’s factual findings on review. Seltenreich v. Stone & Webster, 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). BACK TO TEXT