Smith v. BIC Corporation

The claimant was represented by George Boath, Esq., Zanella, Gilardi & Boath, 1129 Essex Place, Stratford, CT 06615.

The respondents were represented by James Sullivan, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the December 30, 1999 Finding and Award of the Commissioner acting for the Fourth District was heard December 1, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the December 30, 1999 Finding and Award of the Commissioner acting for the Fourth District. In that decision, the trial commissioner awarded the claimant discretionary benefits pursuant to § 31-308a C.G.S. In support of their appeal, the respondents contend that because the claimant had not searched for work, the commissioner improperly concluded that the claimant was entitled to benefits pursuant to § 31-308a C.G.S. We affirm the trial commissioner’s conclusion.

The commissioner found that the claimant sustained a compensable lumbar spine injury on October 20, 1984. Pursuant to a voluntary agreement, the claimant was compensated for a 33.3 percent permanent partial disability of the lumbar spine. The claimant underwent four surgeries, including spine fusion surgery. Subsequent to the fourth surgery performed in September of 1992, the claimant was not able to return to work until April of 1995, at which time the respondent employer provided the claimant with light duty employment and a reduced schedule. The respondent employer made numerous accommodations for the claimant’s physical restrictions until April 1, 1997, when the respondent employer was no longer able to provide this light duty work.

The claimant requested benefits under § 31-308a C.G.S. effective April 1, 1997. The trial commissioner reviewed numerous factors regarding the claimant’s employment potential, including his age, education, experience, and training. The claimant’s treating surgeon, Dr. Mangieri, opined that the claimant could work up to six hours per day performing light duty work which did not require lifting over ten pounds, with no repetitive bending. Furthermore, the trial commissioner reviewed the opinions of several vocational specialists, including Dr. Cohen, who opined that the claimant had no employment potential. Additionally, Tannia Hotchkiss, a vocational rehabilitation counselor, who did not meet with the claimant, performed a labor market survey and opined that the claimant had transferable skills which would allow him to work as a data entry clerk, cashier, security guard, or order clerk. She opined that the claimant could earn between $6.00 and $12.00 per hour.

The trial commissioner found that the claimant did not search for work. However, the commissioner found that the claimant had a reduced earning capacity due to his lumbar spine injury, specifically that he had the physical capacity to earn $8.00 per hour for six hours per day from April 1, 1997 through March 18, 1999 (the date of the last formal hearing). The trial commissioner concluded that the claimant was entitled to § 31-308a C.G.S. benefits based upon his reduced earning capacity as compared to what he would have earned if he had continued employment with the respondent employer.

In support of their appeal, the respondents contend that because the claimant did not search for work, the trial commissioner erred in awarding § 31-308a C.G.S. benefits. At the time of the claimant’s injury, § 31-308a C.G.S. provided “the commissioner . . . may award additional compensation benefits for [a claimant’s] partial permanent disability . . . to be determined by the commissioner based upon the nature and extent of the injury, the training, education, and experience of the employee, [and] the availability of work for persons with such physical condition and at the employee’s age . . . .”

As the language of § 31-308a suggests, it is within the discretion of the trial commissioner to award benefits under that section. Lagueux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 180, 876 CRD-6-89-6 (Aug. 13, 1991). The commissioner must determine as a factual matter whether a claimant has proven a loss of earning capacity and whether a claimant has met the employability restrictions of § 31-308a. Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 1581 CRB-7-92-12 (Dec. 7, 1994); see also Lagueux, supra. Although not a part of the statute as it existed at the time of the claimant’s injury,1 the work search procedure has been accepted by this Commission as an evidentiary basis to demonstrate a willingness to work, and when no work is found, a further basis to demonstrate the unavailability of work. Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 45, 1111 CRD-4-90-9 (Jan. 28, 1992). For injuries occurring prior to July 1, 1993 (see footnote 1, supra), “the statute does not specifically require the claimant to seek work, and 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.” Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 1721 CRB-1-93-5 (March 22, 1995), aff’d, 54 Conn. App. 296 (1999).

Here, the trial commissioner properly considered all of the requisite factors, and found that the claimant was entitled to discretionary benefits under § 31-308a C.G.S. It does not appear that the commissioner considered improper factors in making the decision, nor was that decision contrary to law or an abuse of discretion. Therefore, we must uphold the award of benefits.

The trial commissioner’s decision is affirmed.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

1 Public Act 93-228 amended this section (effective July 1, 1993) to include the following: “Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.” BACK TO TEXT