Belanger v. J & G Belanger Concrete Construction

The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, 96 Webster Street, Hartford, CT 06114.

The respondents were represented by Michael Buonopane, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

The employer was represented by Christopher Reeves, Esq., Furey, Donovan, Tracy & Daly, 43 Bellevue Avenue, P.O. Box 670, Bristol, CT 06011-0670, who did not appear at oral argument.

This Petition for Review from the February 27, 2001 Finding and Award of the Commissioner acting for the Sixth District, was heard October 5, 2001 before a Compensation Review Board Panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the February 27, 2001 Finding and Award of the trial commissioner acting for the Sixth District. In that decision, the trial commissioner found that a voluntary agreement was approved regarding a lumbar spine injury sustained by the claimant on December 1, 1997. The trial commissioner awarded § 31-308a benefits for the period from June 8, 2000 for 56.1 weeks, but denied the claimant’s request for § 31-308a benefits from May 17, 2000 through June 7, 2000. Additionally, the trial commissioner dismissed the claimant’s claim that the employer denied him light duty employment in violation of § 31-313. In support of his appeal, the claimant contends that the trier erred in denying § 31-308a benefits from May 17, 2000 through June 7, 2000, and that the trier erred in concluding that the respondent employer did not violate § 31-313 C.G.S.1

We will first address the claimant’s argument that the trial commissioner erred in denying § 31-308a benefits for the period from May 17, 2000 through June 7, 2000. The claimant contends that in addition to his testimony that he was looking for work during this period, the fact that the claimant actually secured employment on June 8, 2000 indicates that he was indeed searching for work in compliance with § 31-308a. In the instant case, the trial commissioner heard evidence, including the claimant’s testimony, regarding the claimant’s search for work during said period, along with evidence regarding the nature of the claimant’s injury, and his age, training, and experience. The trial commissioner concluded that “credible and competent evidence was not produced which would support the statutory criteria” of § 31-308a. Findings, ¶ E.

We have repeatedly explained that § 31-308a gives a commissioner discretion to award benefits based on such factors as the claimant’s age, training, marketability, education, and the severity of his injury. Degiacomo v. Arwood Corp., 3486 CRB-1-96-12 (Jan. 21, 1998); Richmond v. General Dynamics Corp., 13 Conn. Workers’ Comp. Rev. Op. 345, 346, 1825 CRB-2-93-8 (April 27, 1995). Here, the trial commissioner found that the claimant did not present credible evidence regarding his claim for § 31-308a benefits. The determination of the credibility of the evidence, including the credibility of lay and expert witnesses, is solely within the province of the trial commissioner. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998). Therefore, as the trial commissioner’s decision is based upon his assessment of the credibility of the evidence, we find no error in the trial commissioner’s denial of § 31-308a benefits.

We will next address the claimant’s argument that the trial commissioner erred in concluding that the respondent employer did not have light duty employment available, and thus did not violate § 31-313 C.G.S.2 In the instant case, the trial commissioner found that the claimant “testified that the only light duty which would be available with the respondent was that of bookkeeper which was currently performed by his uncompensated mother.” Findings, ¶ 11. The trial commissioner thus concluded that the respondent employer was not able to accommodate the claimant within his work restrictions as suitable work was not available. Findings, ¶ F. Whether an employer has suitable light duty work available, and whether the employer fails to provide such work to an employee, are questions of fact for the trial commissioner. Hill v. Pitney Bowes, Inc., 8 Conn. Workers’ Comp. Rev. Op. 98, 832 CRD-7-89-3 (May 17, 1990). Here, the trial commissioner’s findings are fully supported by the record, and thus may not be disturbed.

The trial commissioner’s decision is affirmed.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 We note that at oral argument before this board the claimant withdrew his request for attorney’s fees. BACK TO TEXT

2 We note that in the February 27, 2001 Finding and Award, the trial commissioner refers to § 31-312 instead of § 31-313, which we find to clearly be a scrivener’s error, as there were no claims regarding § 31-312 in the case before us. We note that a Corrected Finding and Award issued March 26, 2001 corrects this reference and dismisses claimant’s claim for Sec. 31-313 benefits. BACK TO TEXT