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CASE NO. 4413 CRB-3-01-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 5, 2002
LIBERTY MUTUAL INSURANCE GROUP
The claimant was represented by John D’Elia, Esq., Kennedy, Johnson, D’Elia & Gillooly, 545 Long Wharf Drive, New Haven, CT 06511.
The respondents were represented by James L. Sullivan, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.
This Petition for Review from the June 21, 2001 Finding and Award of the Commissioner acting for the Third District was heard February 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the June 21, 2001 Finding and Award of the Commissioner acting for the Third District. They contend on appeal that the trier erred by awarding the claimant two separate periods of disability benefits, and in calculating the claimant’s compensation rate for an additional period of § 31-308a entitlement. We affirm the trial commissioner’s decision in part, and remand concerning two issues that will require further findings.
The trial commissioner found the following relevant facts. The claimant began working for the respondent Bic Corporation in 1971. She sustained a compensable injury to her right elbow in 1978 while performing repetitive motion activities, and had surgery for that injury in 1983. She returned to work for Bic in 1984, and reinjured the elbow in 1987 while performing further repetitive activities. The claimant had another elbow surgery in 1988, and later that year injured her right shoulder while working. Her right hand is her master hand.
After 1990, she attempted to return to work, but was informed by the Bic personnel manager, Mr. Costa, that there was no suitable employment available. She began vocational retraining at Gateway Community College in January 1991, at which pursuit she spent at least 50 hours per week. She still intended to return to work for Bic. However, in August 1992, her pain worsened enough to make her discontinue her vocational rehabilitation schooling. She testified that her right elbow and shoulder pain was unbearable by November 1992, and that it interfered with her arm and fine motor movements, as well as her ability to sleep.
On November 2, 1992, Dr. Kaplan, the claimant’s treating physician, stated that she was totally disabled, but could return to light work after shoulder surgery. The respondents were reluctant to authorize additional surgery, and the claimant was sent to a total of four independent medical examinations over the next two years—twice with Dr. Redler, and twice with Dr. Sica, the latter of whom worked at the company facility and was not a surgeon. Despite Dr. Redler’s recommendation in favor of shoulder surgery, Bic continued to withhold its clearance until the operation was performed on March 20, 1995. By then, activities as simple as personal grooming were causing the claimant intolerable pain.
During the interim between November 1992 and March 1995, neither Mr. Costa nor Dr. Sica advised the claimant about the availability of light work, and she was not contacted on that subject by a union representative. She became a literacy volunteer, and taught English to a woman from Ecuador, along with volunteering to deliver meals from her church to a homeless shelter. Dr. Kaplan indicated in a June 1993 report that the claimant would only be able to attend school on a part-time basis. On June 21, 1994, he opined that the claimant could have started light duty work as of November 19, 1992, with significant lifting restrictions, including a prohibition against repetitive motion activities and against working with vibrating machinery. In 1996, he rated her with a 10% permanency of the right shoulder, and stated that her work restrictions should be considered permanent.
The claimant returned to light duty work in August 1995. She supervised the operation of a “ball popper” machine for a while, and was then given a “bump sheet” and told to look for available jobs. She was next offered work on the “nib grinder” machine, which she thought too repetitive, and involving too much heavy lifting and arm motion. In the building where lighters were manufactured, she tried a light duty job for four or five months, but developed severe right shoulder and elbow pain. She was then sent back to the ink filling cartridge department, where she performed no work activity whatsoever, as she was given nothing to do. Afterward, she was provided with a layoff slip (on September 20, 1996), and was advised by the manager of the Safety and Health Services department, Mr. Burgert, that there was no temporary light duty work available for her.
Still, she returned to work on November 25, 1996, and was told to choose another position from the “bump sheet.” She investigated those jobs, and ultimately became assigned to a shaver inspection position. She questioned whether she could perform that task due to its repetitive nature and because she would have to hold her arm above shoulder level in order to do the job. Dr. Kaplan wrote a report in December 1996 indicating that the claimant should not perform such duties. The claimant complained to Mr. Burgert, and was told that she was being placed on workers’ compensation, and would be required to submit job search forms again. She did so from January 23, 1997 through August 28, 1997, while re-enrolling in vocational rehabilitation. She began another rehabilitation program at Gateway Community College in August 1997, which is when her job searches stopped. She graduated from that program on May 28, 1998, after putting in 50 to 60 hours per week for the school year.
In July 1998, the union representative from Bic, Michael Alberino, approached the claimant and advised her to accept a retirement package in order to avoid being terminated from the company and losing her health insurance. She had planned on staying with Bic until reaching regular retirement age. Earlier, she had indicated to Mr. Alberino that she wished to continue working for the company even though they had told Mr. Alberino that they would give no more work to the claimant. He advised her to take the disability retirement, in light of a new union contract that would allow the company to terminate her employment. Mr. Burgert testified that almost every job at Bic involved repetitious hand activities, and averred that his employer had no obligation to provide transitional or modified work to the claimant on a permanent basis. She formally retired in December 1998, and began working as a clerical assistant for the town of Woodbridge in July 1999, averaging about 16 hours per week.
The trial commissioner concluded that the claimant had been partially disabled from November 1992 to March 19, 1996, entitling her to benefits, including wage differential benefits for a seven-month period during which her salary was slightly lowered by the respondent after she returned to light duty work in August 1995. He also awarded the claimant 25.62 weeks of permanency benefits through September 23, 1996, and a subsequent period of § 31-308a compensation at the base rate through July 1, 1999. Beyond that, she was entitled to § 31-308a wage differential benefits, which he described as being “based on the differential rate of pay between the average weekly wage as set out on the right shoulder voluntary agreement, $408.22, and the amount of money she was paid for wages earned while employed by the Town of Woodbridge for the period between July 2, 1999 and September 2, 1999.” Findings, ¶ E. Subsequent benefits would be determined at later hearings. The respondents have appealed that decision, along with the denial of their Motion to Correct.
The respondents’ first claim of error addresses the trier’s award of temporary partial disability benefits between November 1992 and March 1996. They contend that the evidence demonstrates that the claimant had a work capacity prior to her surgery, but failed to make any effort to obtain light duty employment, as was her duty under the statute. As the respondents acknowledge, the role of this board on appeal is not to retry the facts of a case by drawing our own factual inferences from the evidence. Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001). All determinations of evidentiary credibility are left solely to the trial commissioner, who as the trier of fact is charged with deciding which, if any, documentary exhibits and witness testimony are the most believable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board may review factual findings only to determine whether there is evidence in the record to support them, and to ensure that the trier has not omitted material facts from her findings that are truly admitted or undisputed. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). As for the legal conclusions drawn from those findings, we may disturb them only if they result from an incorrect application of the law, or from an unreasonably drawn inference. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Mosman, supra.
Under § 31-308(a), a partially incapacitated employee is entitled to compensation based upon the difference between the wages currently earned by an employee in a position comparable to that held by the claimant before her injury, and the amount she is able to earn after the injury. If the attending physician certifies that the employee is able to perform light duty work, and the employee is ready and willing to perform such work in that locality, but no such work is available, the employee is entitled to her full weekly compensation subject to the provisions of § 31-308(a). The respondents argue that according to Dr. Kaplan, the claimant had a work capacity from November 1992 through her surgery date in March 1995. See ¶ 37, Findings. For the claimant to collect benefits under § 31-308(a), she was required to show that she was “ready and willing” to perform work within her restrictions. The respondents assert that she was improperly absolved of that duty by the trier because he incorrectly shifted the burden onto the employer (specifically, Dr. Sica, Mr. Costa and the union representative) to advise the claimant about light duty work, rather than requiring her to present herself for such work during the relevant time frame.
Whether or not a claimant has satisfied the criteria of § 31-308(a), thereby qualifying for wage differential benefits, is essentially a factual determination for the trier. Martin v. A. Aiudi & Sons, LLC, 4384 CRB-6-01-5 (April 25, 2002). It is, of course, a claimant’s burden to prove that she qualifies for such benefits, rather than the respondents’ burden to disprove such entitlement. Baldino v. Corcoran & Son Landscaping & Paving, 4275 CRB-4-00-8 (July 23, 2001) (respondents’ failure to offer proof contesting benefits for certain time period did not relieve claimant of burden of proving entitlement). Often, a partially incapacitated claimant will demonstrate the unavailability of light duty employment by submitting records of unsuccessful work searches, but the statute does not actually require a work search. Rodrigues v. American National Can, 4043 CRB-5-99-4 (July 26, 2000). Other evidentiary means may also be adopted to illustrate that condition, depending on the totality of the circumstances in a given case. Id., citing Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996).
The evidence in the record leaves no doubt that the claimant suffered significant problems with her shoulder as a result of her 1988 injury. In fact, as of November 2, 1992, Dr. Kaplan thought that she was “100% disabled,” and hoped to get her back to light work following surgery. Claimant’s Exhibit A. His reports after that date consistently noted the claimant’s shoulder impingement, which caused her continuing pain and movement limitations, and they consistently maintained that surgery was necessary until it was finally performed in March 1995. Though Dr. Kaplan noted in a June 21, 1994 report that the claimant had a light duty capacity as of November 19, 1992 (Exhibit A, supra), he observed two months later that her “everyday activities are curtailed so that even brushing her teeth gives her pain. . . . Last week she lifted a gallon of milk which threw her lower back out. She was in bed for two days. Driving makes her worse, walking long distances makes her worse.” Id. (Aug. 16, 1994 report). Thus, the extent of her light duty capacity may have been open to question.
The claimant testified that Dr. Kaplan did not discuss work restrictions with her, and explained that “to the best of my knowledge he told me that I was totally disabled, that I shouldn’t be using the arm any more than possible that I had to.” September 2, 1999 Transcript, p. 41. She also explained that, rather than retire from Bic, she had enrolled in the workers’ rehabilitation program in 1990 and began business administration classes at Gateway College in January 1991. Id., 28. She intended to complete the two-year course by January 1993, but experienced so much shoulder and arm pain by August 1992 that she withdrew from school with the intention of having the surgery in October, and then re-enrolling in January. Id., pp. 29-32. It then developed that (as discussed above) the respondent Bic contested the necessity of her surgery, and continued to do so for over two years while the claimant awaited her operation. She reflected that her pain had been unbearable. “Activities aggravated it, even personal grooming or combing my hair or brushing my teeth. I tried to keep busy, to do things that wouldn’t aggravate it. So I became a literacy volunteer to teach someone English as a second language. I figured [if] I couldn’t use my arms at least I could use my brain.” Id., 38-39. She confirmed that, during this waiting period, no one from the company contacted her to offer light duty work, nor did she look for such work. Id., 39; December 20, 1999 Transcript, p. 27.
From the trier’s findings, we would infer that, in his view, the claimant made a sincere effort to recover from her injury and return to work at Bic. Because of her employer’s delay in authorizing surgery, she was left in a metaphorical limbo state for over two years, during which time she continued to have serious and limiting pain in her right elbow and shoulder while continuing to hope that surgery would be scheduled soon. As no one instructed her to look for light duty work, and Dr. Kaplan did not even hint that she might have a work capacity until June 1994, one can understand why the claimant might not have tried to secure such a position. Her belief may very well have been that any work prior to surgery would aggravate her injuries and make them worse, as she testified at the December 20, 1999 hearing. Transcript, p. 46.
However, the commissioner found that she did have a light duty capacity, but did not make any findings addressing the “ready and willing to work” or the “unavailability of work” components of § 31-308(a). No evidence was offered to demonstrate that the claimant would not have been able to obtain light duty employment, thereby entitling her to full compensation under the statute. See Shimko, supra; Zito v. Stop & Shop, 3929 CRB-3-98-11 (Feb. 17, 2000) (Delaney, C., dissenting). Additionally, in the absence of sufficient evidence regarding the unavailability of work, the trier made no finding as to the claimant’s light duty earning capacity, thereby enabling a wage differential to be calculated. See, e.g., Martin, supra. The law demands that these matters be resolved before benefits can be awarded under § 31-308(a). As there are insufficient findings here upon which an award may be premised, we must remand this issue to the trier for further findings on the subject of the claimant’s light duty earning capacity between 1992 and 1995 and on her possible entitlement to full compensation, assuming that it can be shown that no suitable work was available in her locality.
The respondents next assert that the trier erred by awarding § 31-308a benefits from December 30, 1996 through July 1, 1999. We disagree with their contention that the findings and the evidence do not support this award. The claimant’s testimony furnishes sufficient description of the light duty work that Bic offered her during that time period, and explains why she was unable to perform those jobs. See September 2, 1999 Transcript, pp. 45-66; December 20, 1999 Transcript, pp. 3-23. The trier was entitled to credit her testimony over that of Mr. Burgert, the Bic health department manager, insofar as their versions of events conflicted. Tartaglino, supra; Warren, supra. The “undisputed” facts set forth by the respondents in their brief are in fact dependent on credibility assessments, and this board cannot perform its own evaluation of comparative witness credibility on review. The claimant submitted job search forms for the relevant time period; Claimant’s Exhibit E; and evidence of vocational retraining, along with her testimony and that of Mr. Alberino, the union representative. Thus, the record contains adequate evidentiary support for the § 31-308a award.
Finally, the respondents contend that the trier miscalculated the claimant’s wage differential award between July 1999 and September 1999, while she was working 16-hour weeks as a clerical assistant for the Town of Woodbridge. They point out that the claimant was admittedly not maximizing her earning capacity during that time period, as she had not been restricted from performing full-time light duty work, and had not shown any attempt to supplement her income. December 20, 1999 Transcript, p. 57. The trier made no specific finding as to this issue. We agree that a simple comparison between her $408.22 average weekly wage and her gross wages from the clerical assistant job is not sufficient under § 31-308a. Instead, the trier must determine whether the claimant is capable of working more than 16 hours per week, and if so, what her earning capacity would be for a full week (or whatever hours she is capable of working). He would not be precluded from extrapolating this figure from the claimant’s hourly pay rate at the clerical assistant’s job, of course, should no other credible evidence of earning capacity be available. Her full earning capacity is what should be compared to her $408.22 average weekly wage, as set by the voluntary agreement, in making the § 31-308a wage differential calculation. Thus, we remand this matter for findings on that subject as well.
The trial commissioner’s decision is affirmed in part, and reversed in part with instructions to consider further issues on remand.
Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.
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