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CASE NO. 4008 CRB-06-99-03
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 1, 2000
SHAW’S SUPERMARKETS, INC.
SEDGWICK OF NEW ENGLAND, INC.
The claimant was represented by Mark Merrow, Esq., Forbes & Merrow, 17 Lenox Place, P. O. Box 1868, New Britain, CT 06050.
The respondents were represented by Brian E. Prindle, Esq., 72 Bissell Street, Manchester, CT 06040-5304.
This Petition for Review from the March 18, 1999 Finding and Award of the Commissioner acting for the Sixth District was heard September 10, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Amado J. Vargas.
JESSE M. FRANKL, COMMISSIONER. The respondents have petitioned for review from the March 18, 1999 Finding and Award of the Commissioner acting for the Sixth District. They argue on appeal that, while considering the claimant’s entitlement to § 31-308a benefits, the trier erred by finding that she had no earning capacity. We affirm the trial commissioner’s decision.
The claimant suffered a compensable back injury while working at the respondent Shaw’s on April 4, 1997. Her injury resulted in an 8% permanent partial disability of her low back, as per an approved voluntary agreement. When the claimant recognized that her disability prevented her from handling the physical demands of being the manager of Shaw’s seafood counter, she took a less physically demanding position in July 1997 as an assistant seafood manager at Big Y Supermarket, where she earned comparable wages. However, her treating physician assigned her permanent work restrictions on February 11, 1998 that precluded her continued employment at Big Y as well.
The claimant thereupon enrolled in the Division of Workers’ Rehabilitation established by § 31-283a, and began receiving 29.92 weeks of permanent partial disability payments. Her compensation rate was $320.69 per week, as provided by the voluntary agreement. After those specific indemnity benefits ran out on September 8, 1998, the claimant sought further benefits pursuant to § 31-308a. She contended that, had she been able to continue working at Big Y, she would have been promoted to seafood manager, earning $15.15 per hour. The job searches that the claimant undertook between September 16, 1998 and December 30, 1998 were fruitless, and the claimant alleged that she was losing $698.90 each week because of her disability. The respondents replied that the claimant only attended DWR classes from 9:00 A.M. to 1:00 P.M. three days per week, which constituted insufficient proof (along with her limited job searches) to establish that she had no current earning capacity. They also asserted that, contrary to the language of § 31-308a, the claimant had failed to introduce evidence of the wages currently being earned by an employee working at a position comparable to the one she had held at the time of her injury.
The trier concluded that the claimant had performed job searches consistent with her work restrictions and her prior employment history, and decided that she had adequately proven her entitlement to § 31-308a benefits. He declined to rely upon the claimant’s speculative contention that she would have been earning $15.15 per hour if not for her injury, and instead adopted the $320.69 compensation rate recited in the voluntary agreement. He then stated, “As the claimant is enrolled in schooling through the Division of Workers’ Rehabilitation, which accounts for the majority of her working day/week, I find that she has no earning capacity.” Findings, ¶ K. He thus awarded 29.92 weeks of compensation at the full $320.69 figure retroactive to September 16, 1998, which decision the respondents have appealed to this board.
An award of § 31-308a1 benefits, being discretionary, is not subject to a high level of scrutiny by this board on appeal. We will leave intact a trier’s decision to award or deny § 31-308a benefits unless we determine that the trier has committed an abuse of the discretion granted him by the Workers’ Compensation Act. Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 295 (1999); Pontoriero v. Sanzo Concrete Construction Co., Inc., 3492 CRB-4-96-12 (Mar. 6, 1998). In general, if the trial commissioner has considered the criteria listed in the statute before making his decision, and has kept his focus on the claimant’s earning capacity, this board cannot tamper with his exercise of judgment. Id., citing Kulhawik v. Ace Beauty Supply, 15 Conn. Workers’ Comp. Rev. Op. 159, 160, 2116 CRB-2-94-8 (Feb. 1, 1996). Most often, the trier’s decision depends on an assessment of evidentiary credibility, which we are not empowered to second-guess on review. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
In the present case, the respondents contend that the claimant failed to establish a zero earning capacity because she had primarily looked for work at supermarkets and restaurants—businesses which only occasionally have light duty openings, and which had not indicated to the claimant that they were currently hiring. She had also looked for a job at a film developer’s shop, having once worked as a photo lab technician, but sought no other entry-level positions. According to the respondents, these work searches do not accurately represent the claimant’s moneymaking potential, which led the trier to instead base his finding that the claimant had no earning capacity on the fact that she was participating in a workers’ rehabilitation program. They claim this to be error. However, we do not agree with the respondents’ description of the trier’s reasoning process.
First, we observe that a claimant is not specifically required by § 31-308a to perform a job search before discretionary benefits may be awarded. Bowman, supra, 295-96; Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 45 (1992), 1111 CRD-4-90-9 (Jan. 28, 1992). A commissioner may draw inferences regarding a claimant’s employability from other facts as well, such as the extent of her disability or her limited educational background. See, e.g., Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 1721 CRB-1-93-5 (Mar. 22, 1995), affirmed, 54 Conn. App. 289 (1999); Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 1980 CRB-1-94-3 (Aug. 30, 1995). Where an unsuccessful work search has been performed, it is the prerogative of the trier of fact to judge whether a claimant has made a meaningful effort to obtain employment, and whether any inference as to her earning capacity can be drawn from the results of the search. See Kulhawik, supra. Other factors may, of course, be considered in conjunction with the job searches as a means of calculating a claimant’s earning capacity.
We have stated in past cases that a claimant may receive § 31-308a benefits while she is obtaining vocational retraining, even if this compromises her immediate availability for employment. Clay v. Quality Insulation, 14 Conn. Workers’ Comp. Rev. Op. 82, 1922 CRB-2-93-12 (May 12, 1995); Mazzone v. Norwalk, 5 Conn. Workers’ Comp. Rev. Op. 111, 482 CRD-7-86 (June 21, 1988); Fortin v. State of Connecticut, 2 Conn. Workers’ Comp. Rev. Op. 116, 138 CRD-6-82 (Jan. 14, 1985). “It would be inconsistent with the humanitarian spirit and remedial purpose of the Workers’ Compensation Act to penalize a claimant who, because of his injury and resultant incapability of performing his previous line of work, chose to pursue another career that required some education before employment could be obtained in that area.” Clay, supra, 84. “A claimant should not be required to indefinitely retain unsuitable employment in order to collect wage differential benefits where the DWR has approved a vocational rehabilitation program that would allow the claimant to pursue a more desirable line of work.” Id. These considerations are certainly relevant in the present case.
The commissioner below accepted the claimant’s job searches as reasonable attempts to find work. It is also fair to note that, following her injury, the claimant took a similar, lighter-duty job with another supermarket, but was unable to continue at that position due to the physical restrictions identified by her doctor. The commissioner could have surmised from this evidence, and the claimant’s testimony, that she spent several months making honest but unsuccessful efforts to find employment in areas with which she was familiar, and did not investigate other occupations because she reasonably believed that she lacked the requisite abilities. See January 14, 1999 Transcript, 27. Meanwhile, she had begun a vocational rehabilitation program with the state, which constrained her available work hours. The fact that the claimant did not exhaust every potential job-seeking avenue for the entire 29.92 weeks she was receiving benefits did not preclude the trial commissioner from deducing that, under the instant set of circumstances, she had no earning capacity under § 31-308a. There is sufficient support in the record for a finding that the claimant was practically unemployable.
The trial commissioner’s decision is hereby affirmed. If any of the benefits due the claimant remain unpaid, an award of interest is mandated by § 31-301c(b).
Commissioners Angelo L. dos Santos and Amado J. Vargas concur.
1 Section 31-308a provides: “(a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to seventy-five 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, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.
(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation. BACK TO TEXT
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