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CASE NO. 4384 CRB-6-01-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 25, 2002
JAMES P. MARTIN
A. AIUDI & SONS, LLC
ST. PAUL FIRE & MARINE INSURANCE
The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, 96 Webster Street, Hartford, CT 06114.
The respondents were represented by Timothy G. Zych, Esq., Smith, Ketainek, Robertson & Musco, 9 Washington Avenue, Suite 3-A, P. O. Box 5035, Hamden, CT 06518-0035.
This Petition for Review from the April 26, 2001 Finding and Dismissal of the Commissioner acting for the Sixth District was heard November 16, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the April 26, 2001 Finding and Dismissal of the Commissioner acting for the Sixth District. In that decision, the trial commissioner denied the claimant’s request for temporary partial disability benefits under § 31-308(a) C.G.S. Specifically, the trial commissioner found that the claimant owned an ice-cream business from which he earned a greater amount than he would be entitled to receive under § 31-308(a). In support of his appeal, the claimant argues that his injury resulted in a wage loss and thus the trier erred by not awarding temporary partial disability benefits.
The trial commissioner found the following relevant facts. On April 6, 1998, the claimant injured his back when his truck turned over while working for the respondent employer. The respondents accepted the claim and paid temporary total disability benefits from April 7, 1998 to April 15, 1998. The claimant’s benefit rate was calculated to be $592.20 based upon the wages from the respondent employer. In 1997, the claimant had purchased The Original Dunphy’s LLC (“Dunphy’s”), an ice cream store, while maintaining full time employment with the respondent employer. The claimant sought to use his earnings from Dunphy’s as concurrent employment. See Findings, ¶ 6. However, the claimant failed to produce evidence that he was a covered employee of Dunphy’s at the time of the 1998 injury. Findings, ¶ 34. Additionally, the claimant reported net losses from Dunphy’s for the years 1997 and 1998. Accordingly, the trial commissioner concluded that Dunphy’s did not constitute concurrent employment under § 31-310. The claimant has not appealed that issue.
Next, the trier considered the claimant’s request for temporary total disability benefits and § 31-308(a) benefits from October 5, 1998 to the time of the formal hearing. The claimant’s treating physician, Dr. Becker, stated in a disability slip dated April 26, 2000 that the claimant was disabled from April 10, 2000 to April 26, 2000, and in a second disability slip dated April 26, 2000 he opined that the claimant was disabled for an additional two weeks. Dr. Becker’s assessment of disability was based upon the claimant’s representation of increased back pain. On May 12, 2000, Dr. Becker released the claimant to light duty with restrictions against driving a truck, bending, and lifting over 15 pounds.
Subsequently, in a July 25, 2000 letter, Dr. Becker noted that the claimant was observed working at his ice-cream business on April 29th and 30th of 2000. Dr. Becker testified that he reviewed a surveillance tape of the claimant working at his ice-cream store during the period that he had found the claimant to be temporarily totally disabled. He testified that the work activities of the claimant on the surveillance tape were inconsistent with total disability from April 10th to May 12th, 2000. However, Dr. Becker opined that his activities at the ice-cream store were consistent with the work restrictions provided to the claimant on May 12, 2000. Findings, ¶ 29. The claimant acknowledged that he had been working in his ice-cream business since May of 2000.
Dr. Steckler performed an independent medical records review and issued a report on October 17, 2000 in which he indicated that he had viewed the surveillance tapes of the claimant taken on April 29th and 30th, 2000. Dr. Steckler noted that the claimant performed customary activities as the purveyor of ice cream including repetitive bending and scooping of ice cream at waist level. He further noted that the claimant did this on a regular basis, seeing several customers per hour. Dr. Steckler noted that at the end of the day, the claimant did not show any negative effect from this repetitive bending. In Dr. Steckler’s opinion, the claimant’s work activities were not consistent with the work restrictions imposed pursuant to Dr. Becker’s May 12, 2000 disability slip.
Regarding the claimant’s request for § 31-308(a) benefits, the trial commissioner denied any claim after May 12, 2000 on the ground that he had not made efforts to find suitable work within his light duty restrictions. Findings, ¶ G. With respect to the prior time period, the trier found that the ice-cream business generated earnings of either $10,890.00 or $11,582.00 in 1999, and at least that same amount in 2000. The trial commissioner also concluded that the claimant’s claim for § 31-308(a) benefits from October 5, 1998 to April 14, 2000 would entitle him to $17,317.08 in benefits (which figure appears to be based upon his reduced earnings from the respondent employer upon returning to light duty). However, in determining whether the claimant suffered a wage loss due to his light duty status, this $17,317.08 figure does not include money that the claimant was able to earn at Dunphy’s. The trier then held that the claimant’s ice-cream shop earnings in 1999 and 2000 exceeded the amount of temporary total disability compensation otherwise payable to him under § 31-308(a) for the years 1998-2000, and denied any claim for temporary partial disability benefits from October 5, 1998 onward.
Under § 31-308(a), a partially incapacitated employee “shall be paid a weekly compensation 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 the injured employee before his injury, after such wages have been reduced by any deduction for federal or state taxes, or both [as well as FICA] . . . and the amount he is able to earn after the injury, after such amount has been reduced by any deduction for federal or state taxes, or both [as well as FICA] . . . .” Whether a claimant has satisfied the statutory criteria for § 31-308(a) wage differential benefits is a factual determination for the trial commissioner. Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995). A partially incapacitated claimant is entitled to benefits under § 31-308(a) when he is able to do some work but unable to fully perform his customary work, resulting in a loss of income. Rodrigues v. American National Can, 4043 CRB-5-99-4 (July 26, 2000), citing Shimko v. Ferro Corp., 40 Conn. App. 409 (1996).
Here, the trial commissioner appears to have denied the claimant’s request for § 31-308(a) benefits on the basis that the claimant’s earnings from Dunphy’s offset his entitlement to § 31-308(a) benefits, citing Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (Jan. 8, 1999). There is no basis in § 31-308(a) for a direct, dollar-for-dollar offset of benefits against one’s earnings from a personally owned business. We have instead explained that such a business may be used in calculating “the amount [one] is able to earn after [an] injury” under § 31-308(a) where the business is more than a mere passive income source. Rodrigues, supra; Heene, supra; Granoff v. New Haven, 12 Conn. Workers’ Comp. Rev. Op. 166, 168, 1555 CRB-3-92-11 (April 29, 1994). The income from such a business would be added to any other earnings that the claimant was able to secure following his compensable injury. Of course, a claimant’s expense of time and effort in operating a privately owned business might also be a factor in deciding whether he has adequately searched for outside work. See Heene, supra, Rodrigues, supra; see also Kropf v. Lloyd Davis, D.D.S., 3229 CRB-8-95-12 (Aug. 27, 1997) (return to work, albeit at reduced schedule, demonstrated that claimant adequately sought work within her restrictions). It is worth noting, though, that § 31-308(a) “does not require that a Commissioner find that a claimant maximize earnings potential.” Besade v. Interstate Security Services, 12 Conn. Workers’ Comp. Rev. Op. 103, 1383 CRB-2-92-2 (Feb. 28, 1994), aff’d, 37 Conn. App. 903 (1995) (emphasis added).
As set forth above, a “partially incapacitated claimant is entitled to benefits under § 31-308(a) when he is able to do some work but unable to fully perform his customary work, resulting in a loss of income.” Rodrigues, supra, citing Shimko, supra. The findings of fact indicate that due to the claimant’s compensable injury, he is unable to continue driving a truck, for which customary work he earned almost $970.00 per week. If the claimant had shown that this disability had resulted in a loss of income under § 31-308(a), he would have been entitled to a wage differential based upon the week-by-week difference between the after-tax wages earned by an employee in a comparable truck driving job, and the after-tax amount that the claimant was able to earn from all employment, including his labor at Dunphy’s.1
It is, of course, the duty of the claimant to prove each element of his claim in establishing entitlement to disability benefits as a result of an acknowledged compensable injury. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). In this case, Claimant’s Exhibit E demonstrates that the claimant earned a total of $50,431.88 during the 52 weeks prior to his injury, which translated to an average gross wage of $969.84 per week. This, in turn, produces a compensation rate of $592.20 per week after one calculates 75% of the after-tax amount using the tables prescribed by § 31-310 C.G.S. This $969.84 gross wage was adopted by the respondents in their Proposed Findings of Fact as the value of the wages earned by an employee in a comparable truck-driving position to that held by the claimant at the time of his injury; given the fact that the dates in question here run from about six months after the injury to about two years afterward, $969.84 would appear to be a reasonable estimate. Claimant’s Exhibit D, meanwhile, details the claimant’s weekly gross earnings from his employer, A. Aiudi & Sons, LLC, from the date of his injury through April 14, 2000.
The worksheets prepared by the respondent and attached to their Proposed Findings of Fact rely on Claimant’s Exhibit D, and demonstrate that the respondents correctly calculated the claimant’s wage differential benefits by subtracting 75% of the claimant’s net pay for each post-injury week from the pre-injury rate of $592.20, thereby obtaining 75% of the difference between the after-tax “comparable position” pay and the after-tax amount that the claimant was able to earn from A. Aiudi & Sons during his period of partial disability. The $17,317.08 total cited by the trier in ¶ E of his Findings is directly derived from these calculations, and reflects paycheck dates from October 9, 1998 to April 14, 2000. Though these numbers appear accurate, in no way were earnings from the claimant’s ice-cream business incorporated into these equations. Because such earnings are relevant to the claimant’s § 31-308(a) entitlement, they technically should have been factored into these week-by-week calculations.
Admittedly, it would have been somewhat difficult for the respondents to include such amounts in their proposed weekly income equations, as the record contains no detailed breakdown of the claimant’s income from the ice-cream shop. It appears that the claimant’s § 31-308(a) argument rested on the theory that his income from the shop was purely passive investment income that only affected the value of his investment, with none of this income constituting “earnings” under § 31-308(a). See Claimant’s April 12, 2001 Brief. The claimant thus paid little attention to ensuring that the evidence regarding these amounts earned was specific, and did not attempt to translate the available figures into a weekly income total. The trial commissioner was left with a 1998 tax return showing an after-tax loss of $6,241 from the claimant’s business, and a 1999 tax return showing an after-tax profit of $21,779. The claimant testified that, as a fifty percent partner in The Original Dunphy’s, LLC, he would have received half of that income, though Schedule K-1 of his tax return indicates that the claimant might either have received $10,890 in income, or $11,582.00 in sums paid out (but not both). March 20, 2001 Transcript, pp. 8-10. The claimant could not remember which figure was more accurate (though we would note that $10,890 is exactly half of $21,779, rounded up to the nearest whole dollar). He also testified that his business had gotten better in 2000, and that he would have been earning at least as much for that year. Id., 11.
The respondents eventually argued in their proposed findings that the $17,317.08 figure should be compared directly to the claimant’s income from his ice-cream business over the time period in which benefits were paid, which would completely offset entitlement. The trial commissioner apparently adopted this approach, having no other figures to rely on directly. As we have explained, § 31-308(a) does not permit the calculation to be performed in this manner. Claimant’s Exhibit D shows that his weekly income from his employer varied over the course of the 18-month period during which the trier found that he was partially disabled. There may have been weeks when he would have been entitled to wage differential benefits, even factoring in an extra $210 per week or so in additional net income from the ice-cream shop ($10,890 ÷ 52 weeks = $209.42 per week, which reflects the 1999 tax return figures). Because the claimant did not provide a week-by-week breakdown of his ice-cream shop income, the trier would have been best served by settling on an annual net income figure (or figures) from the ice-cream shop and translating it (or them) into 52 identical weekly amounts, which could then have been added to each of the claimant’s weekly net income totals from A. Aiudi & Sons. See, e.g., Ericson v. Perreault Spring & Equipment, 3200 CRB-5-95-11 (April 28, 1997) (trier apportioned year-end bonus into weekly amounts, which were added to average weekly wage for 26 weeks prior to injury).
Although the claimant could have offered better evidence regarding his earnings from Dunphy’s, the trier did not find that this lack of evidence prevented him from assessing those earnings. Instead, he stopped short of making a precise finding regarding the amount of those earnings on the assumption that said amount was guaranteed to offset the $17,317.08 base § 31-308(a) total for the 18-month period in question. We now remand this matter to a new trial commissioner2 for an exact determination of the claimant’s annual earnings from the ice-cream shop during 1998-2000, and a translation of those earnings into weekly amounts that may be added to the week-by-week figures in Claimant’s Exhibit D. In that way, the claimant’s week-by-week entitlement to § 31-308(a) benefits may be determined. If the trier requests or requires further evidence, we caution counsel that full cooperation is expected in providing such evidence.
Commissioners George A. Waldron and Ernie R. Walker concur.
1 Although our statutes do not require a claimant to perform a work search, it has been accepted as one evidentiary basis to demonstrate willingness to work and the availability of suitable light duty employment. Shimko, supra. It is the claimant’s burden to prove the claimant’s eligibility for § 31-308(a) benefits. Christman v. State/Dept. of Correction, 4134 CRB-1-99-10 (Oct. 16, 2000). Here, whether the claimant is required to search for work under § 31-308(a) rather than work for his privately owned business is ultimately a decision for the trial commissioner. BACK TO TEXT
2 The original trial commissioner is no longer available to decide this matter, having accepted an appointment to the Superior Court. BACK TO TEXT
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