Dzamko v. City of Danbury

The Claimant was represented by John Jowdy, Esq., Jowdy & Jowdy, 67 West Street, Danbury, CT 06810.

The Respondents were represented by Timothy Ward, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the November 1, 2002 Finding and Order of the Commissioner acting for the Seventh District was heard May 30, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Howard H. Belkin and A. Thomas White.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, City of Danbury and CIRMA, have petitioned for review from the November 1, 2002 Finding and Order of the Commissioner acting for the Seventh District. We find no error and affirm the trial commissioner’s Finding and Order.

The claimant suffered compensable injuries to his back and spine as a result of an automobile accident that occurred while working for the respondent City of Danbury as a police officer on August 29, 2001. There was a formal hearing on this case on June 24, 2002. An issue before the commissioner was whether respondent’s Form 36 should be granted.1 In their Form 36 respondents requested that claimant be removed from temporary total disability benefits to a light and/or sedentary work capacity. The trial commissioner approved the Form 36, which changed claimant’s disability status from temporarily totally disabled to temporarily partially disabled. Findings, ¶ B. The trial commissioner also released claimant from any obligation to perform job searches because of his restrictions and his work as a police officer. Findings, ¶ C. The trial commissioner found that respondent, the city of Danbury, had no light duty or sedentary work for its police officers. Findings, ¶ D. The respondents have appealed that decision, along with the denial of their subsequent Motion to Correct.

In their brief in support of their reasons for appeal, the respondents dispute the commissioner’s findings. Respondents claim the findings waive job searches on a prospective basis, and require respondents to pay benefits beyond the date of the formal hearing without the requirement of job searches, and without any evidence that the claimant is ready, willing, and able to look for work within his restrictions.

In their brief respondents recognize that § 31-308(a) C.G.S. does not actually require a work search, citing Rodriguez v. American National Can, 4043 CRB-5-99-4 (July 26, 2000). Respondents also acknowledge that other evidentiary means, outside of job searches, can be used to prove unavailability of suitable light duty work. See Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996); Richardson v. BIC Corporation, 4413 CRB-3-01-7 (August 5, 2002). Respondents further acknowledge that the issue of claimant’s compliance with § 31-308(a) is an appropriate factual determination for the trier, citing Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995).

However, respondents characterize the trier’s findings as “an order for the respondents to continue paying temporary partial disability benefits until the claimant reaches maximum medical improvement and requiring respondent to pay benefits without job searches.” They argue that the commissioner erred in awarding temporary partial benefits beyond the date of the last formal hearing, and contend that the Compensation Review Board has previously held that § 31-308(a) benefits cannot be awarded beyond the date of the last formal hearing. See Perri v. Mitchell Motors, 16 Conn. Workers’ Comp. Rev. Op. 242, 3259 CRB-6-96-1 (June 24, 1997).2 Respondents claim that a commissioner cannot and should not award § 31-308(a) benefits beyond the date of the last formal hearing.

The first issue in this appeal is whether the trial commissioner appropriately waived prospective job searches when he found the claimant to be temporarily partially disabled. The applicable statute in this case, § 31-308(a), deals with compensation for partial incapacity. “Section 31-308(a) provides for benefits for the incapacity of an injured worker who is able to do some work but unable to perform his customary work.” Shimko, supra, 413, citing Hansen v. Gordon, 221 Conn. 29, 39 (1992).

There is no work search requirement in § 31-308(a). Shimko, supra, LaPierre v. UTC/Pratt & Whitney, 4305 CRB-8-00-10 (October 23, 2001). Proof of work search is just “one evidentiary basis to demonstrate willingness to work and the availability of suitable light duty employment.” LaPierre, supra, citing Shimko, supra, and Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 1111 CRD-4-90-9 (Jan. 28, 1992).

If the employee is willing to do light duty or sedentary work prescribed by their physician, but no work is available, then partial incapacity benefits are to be paid Goncalves, supra. A commissioner may find that although a claimant has a theoretical light duty capacity, other factors and restrictions may render an employment search futile. Hidvegi v. Nidec Corp., 3607 CRB-5-97-5 (June 15, 1998). In Hidvegi, the commissioner found that because of claimant’s physical restrictions, age, limited education and other factors, her employability was severely diminished and therefore a job search would have been pointless.

In the case at bar, claimant’s treating physician Dr. Trowbridge testified that claimant was unable to return to full duty as a police officer. He stated that claimant should avoid any chronic posturing as well as repetitive movements using his upper and lower limbs. He recommended sedentary and light duty activities. He said that claimant would need to have the freedom to get up and move about whenever he needed to stretch or lie down to relieve discomfort. April 9, 2002 Deposition of Dr. Trowbridge, pp. 10-11. He prescribed the narcotics Percocet and Flexeril, as needed. Respondents’ Exhibit 2.

Claimant stated that after his treating physician released him for light duty work, he gave a copy of the doctor’s prescription for light duty work to respondents’ representative at the City of Danbury police department. Claimant alleged that respondents’ representative replied that they could not accommodate him with those physical restrictions combined with the medications that he was on. June 24, 2002 Transcript, p. 22.

The commissioner found “that as of the date of the Respondents filing a Form 36 on December 20, 2001, the Claimant, Joseph Dzamko, would no longer have been temporarily totally disabled, but, rather, would have been capable of undertaking sedentary/light duty work with the restrictions as spelled out by Dr. Trowbridge.” Findings, ¶A. The commissioner waived “the requirement that the Claimant undergo or undertake job searches from December 20, 2001, forward, because of his restrictions and the type of occupation involved, i.e., police officer for the City of Danbury.” Findings, ¶ C. The trial commissioner found that respondent, the city of Danbury, had no light duty or sedentary work for its police officers. Findings, ¶ D. Taking into consideration a claimant’s physical restrictions substantiated by a physician, and a claimant’s training and work history, it is within a fact-finder’s prerogative to assess a claimant’s potential likelihood for employment. It is clear that the trial commissioner made this inference from the facts presented to him as to this claimant’s light work capability.

As respondents have conceded, the availability of suitable light duty work under § 31-308(a) is a factual determination for the trial commissioner. Wright, supra. We will not overturn the findings and conclusions of a trial commissioner unless they are without evidentiary support, contrary to law or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, 248 Conn. 379 (1999); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). For these reasons the trier’s finding waiving job searches will not be disturbed.

Respondents’ argument that the commissioner erred in awarding temporary partial benefits beyond the date of the last formal hearing is flawed. In their brief, respondents contend that the Compensation Review Board has previously held that § 31-308(a) benefits cannot be awarded or denied beyond the date of the last formal hearing, and cite Perri, supra, in support of this proposition. We do not believe that the facts of Perri are applicable to this case. Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (November 1, 2001), aff’d, 77 Conn. App. 319 (2003), is a case more directly on point. In Brinson, the Compensation Review Board affirmed the commissioner’s award of ongoing temporary partial disability benefits under § 31-308(a). The Board followed the reasoning that it used in Hidvegi, supra, and in Morris v. A & A Acoustics, 3429 CRB-7-96-9 (August 8, 1997). The Connecticut Supreme Court has continually established the trial commissioner’s right to award continuing temporary total benefits past the date of the last evidentiary hearing. Hidvegi, supra. In the Brinson case, the reasoning in Hidvegi was used to extend the commissioner’s right to award on going benefits in cases of temporary partial disability, such as this case. We see no reason to diverge from that holding here. Therefore, the commissioner did not err in awarding ongoing temporary partial disability benefits beyond the date of the final hearing in this case.

In their brief and at oral argument respondents expressed the opinion that the commissioner’s finding, ¶ D precluded them from filing a Form 36 until the claimant reached maximum medical improvement. Paragraph D states: “The City of Danbury has no light-duty or sedentary work for its police officers. Therefore, the Claimant will not be required to undertake job searches during the period of time when he is entitled to temporary partial disability benefits, and up until such time as he reaches maximum medical improvement.”

The employer has a duty to monitor the status of the case and file a Form 36 if a change of circumstances arises. Hidvegi, supra. “This practice clearly supports the humanitarian purpose of the Workers’ Compensation Act by allowing trial commissioners to award ongoing benefits where the medical evidence indicates that a claimant will continue to be temporarily totally disabled after the close of the last evidentiary hearing.” Id. It should be made clear that respondents are not precluded from filing a Form 36 if a change of circumstances arises prior to claimant reaching maximum medical improvement under the commissioner’s findings. The availability of this remedy affords them sufficient protection of their rights.

The trial commissioner’s decision is accordingly affirmed in its entirety.

Commissioners Howard H. Belkin and A. Thomas White concur.

1 There was also an issue of the reasonableness of medical treatment at the June 24, 2002 hearing. Respondents are not appealing that issue. span class="back">BACK TO TEXT

2 We note that respondents incorrectly cite the Perri case as dealing with § 31-308(a), when it actually deals with § 31-308a. span class="back">BACK TO TEXT