Vescovi v. Yale University

The claimant was represented by Joan C. Molloy, Esq., Loughlin, Fitzgerald, Kamp, Henrici, Molloy, Rizzo & Reed, 150 South Main Street, Wallingford, CT 06492.

The respondents were represented by Neil Ambrose, Esq., Letizia, Ambrose & Cohen, One Church Street, New Haven, CT 06510.

This Petition for Review from the April 20, 1999 Finding and Award of the Commissioner acting for the Third District was heard December 3, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the April 20, 1999 Finding and Award of the Commissioner acting for the Third District. In that decision the trial commissioner found that the claimant sustained compensable injuries to his right shoulder and neck on May 1, 1995 and August 29, 1995 while working as a custodian for the respondent employer. The trial commissioner awarded the claimant § 31-308a benefits for the period from June 17, 1998 through September 7, 1998. In support of its appeal, the employer argues that the trial commissioner erroneously awarded § 31-308a.

In the instant case, the sole issue on appeal is the award of § 31-308a benefits. In support of its appeal, the employer argues that the award of § 31-308a benefits was improper because the claimant had already received § 31-308a benefits pursuant to a Stipulation to Date. In addition, the employer argues that the trial commissioner erroneously awarded § 31-308a benefits after making a specific finding that the claimant did not search for work within his light duty capacity.

Initially, we note that the employer has not provided this board with a transcript of the formal hearing. The resulting absence of a complete record is deemed the fault of the appellant, and the appeal would ordinarily be denied. Bailey v. State of Connecticut/Greater Hartford Community College, 15 Conn. Workers’ Comp. Rev. Op. 433, 3152 CRB-5-95-8 (September 3, 1996), appeal dismissed, A.C. 16397 (12/5/96). Moreover, we note that the employer had filed neither a Motion to Correct nor a Motion for Articulation regarding the trial commissioner’s Finding and Award. Nevertheless, we will consider the merits of the employer’s appeal, insofar as the arguments indicate that the findings of fact do not support the conclusions of the trial commissioner. We remind the parties that in reviewing the factual determinations of the commissioner, the board’s review is limited, and we “may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted). “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it….” Id. at 349 (citations omitted).

We will first address the employer’s argument that the § 31-308a award was precluded by the Stipulation to Date. The trial commissioner found that the Stipulation to Date settled the claimant’s claim for benefits from May 1, 1995 through March 25, 1998 (Finding ¶ 17 and D). The record indicates that the claimant reached maximum medical improvement of the right shoulder on October 31, 1997 and was assessed a ten percent permanent partial disability (Claimant’s Exh. P) which constitutes 20.8 weeks of benefits pursuant to § 31-308(b). Thus, it can be inferred that the stipulation was meant to cover the 20.8 weeks of benefits from October 31, 1997 through March 25, 1998. Accordingly, the stipulation did not preclude that trial commissioner from subsequently awarding twelve weeks of § 31-308a benefits.

We next turn to the employer’s argument regarding the claimant’s lack of a job search. Pursuant to § 31-308a(a), “benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.” In the instant case, the trial commissioner specifically found that the claimant did not look for work within his light duty capabilities during the period from June 17, 1998 through September 8, 1998. (Finding ¶ 30). However, as explained in Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 195, 1721 CRB-1-93-5 (March, 22, 1995), aff’d., 54 Conn. App. 296 (1999), “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.” “Other evidence may also provide proof that the claimant is not employable, or is unable to make the same wages as he did previously.” Johnston v. Thames Permacrete Corp., 15 Conn. Workers’ Comp. Rev. Op. 402, 2278 CRB-2-95-2 (August 16, 1996).

Here, the trial commissioner found that the claimant was able to perform light duty work during the period at issue, but that the respondent employer did not provide the claimant with work within his restrictions. Moreover, the trial commissioner found that the claimant required light duty work for only a limited time. The medical reports which document the claimant’s need for light duty indicate the expectation that the claimant would return to normal duty within a very short period. (See Claimant’s Exh. S through V). Indeed, the medical note of August 28, 1998 indicates that the claimant could return to regular duty on September 8, 1998. (Finding ¶ 29; Claimant’s Exh. V). Under these circumstances, the trial commissioner could infer that the claimant was willing and able to work, but that searching for work for such a limited time would be futile. We thus find no abuse of discretion in the trial commissioner’s award of § 31-308a benefits.

Finally, we will address the employer’s argument that there was no evidence in the record on which to base the § 31-308a benefit rate. As the employer has not filed a Motion to Correct, we must accept the findings as made by the trial commissioner. Allen v. Griffin Health Services Corp., 3768 CRB-4-98-2 (April 27, 1999). In the instant case, the findings adequately indicate that the claimant had a restricted earning capacity of $7.00 per hour for the period at issue, and support the award of § 31-308a benefits based upon the difference between this restricted earning capacity and his prior earnings of $11.50 per hour.