Kelliher v. Russ Berrie & Co., Inc.

The claimant was represented by Judith Rosenberg, Esq., Wofsey, Rosen, Kweskin & Kuriansky, LLP, 600 Summer Street, Stamford, CT 06901.

The respondents were represented by Scott Williams, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.

This Petition for Review from the December 24, 2003, Finding and Award of the Commissioner acting for the Seventh District was heard August 27, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr., and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Mary Kelliher, has appealed from the December 24, 2003, Finding and Award of the Commissioner acting for the Seventh District. We reverse the decision and remand the case to the trial commissioner for proceedings consistent with this opinion.

The pertinent facts are as follows. On June 23, 1990 the claimant suffered a compensable or accepted low back injury while working for the respondent, Russ Berrie & Company, Inc., as a regional sales manager. As a result of this injury the respondent paid the claimant temporary total disability benefits for a period of time that the claimant was unable to do any work. When the claimant was later released to light duty work she was no longer able to perform her regular job duties which included significant driving and lifting heavy items and objects. At that time the claimant began doing light-duty job searches and worked at Macy’s Department Store. She also worked as a restaurant hostess. During this period of time the respondents paid the claimant partial disability benefits.

Towards the end of 1991 the claimant’s back had improved and she attempted to work as a sales person again. She took a position as a sales representative for SNET Company (hereinafter “SNET”) selling Yellow Page advertising. This position also required significant driving and heavy lifting. While working for SNET the claimant’s low back condition continued to deteriorate to the point that she required surgery which was performed by her treating physician, Dr. Isaac Goodrich, on July 25, 1995. The respondents paid all reasonable and necessary medical expenses associated with the claimant’s surgery. Additionally, the respondents paid the claimant temporary total disability benefits while she was unable to work at all. Further, the respondents paid the claimant an increase in her permanent partial disability award to a total permanency impairment rating of 20%. The respondents had previously paid the claimant 15% of her low back.

The claimant was terminated from her position at SNET in January of 2000. The claimant testified that the main reason she left the respondent-employer and SNET was that her back condition was worsening and she could not perform outside sales which required extensive driving and heavy lifting. Dr. Goodrich opined the claimant’s work activities at SNET from 1991 through 1995 were 25% responsible for her deteriorating back and subsequent need for surgery.

The trial commissioner found the claimant’s earning capacity had been adversely affected by the compensable back injury she suffered while employed by Russ Berrie & Company. The trial commissioner determined that the significant disability to the claimant’s back, her training, education and work experience made it appropriate to award § 31-308a benefits. The trial commissioner found that since Dr. Goodrich placed 25% of the responsibility for the claimant’s medical problems with SNET, the amount of § 31-308a benefits due the claimant will be reduced by 25%. The trier awarded the claimant § 31-308a benefits for the years 2000, 2001 and 2002 and reduced each year’s benefits by 25%.

The claimant appealed this award. The claimant alleges that the trial commissioner erred in apportioning the § 31-308a benefits at all and furthermore, that the claimant was not given notice that the respondents intended to raise the issue of apportionment because the respondents had accepted all significant aspects of the case.

The conclusions the trier arrives at must be supported by the facts found. Stevenson v. Edward W. Stevenson & Sons, 4480 CRB-8-02-1 (January 8, 2003). Here, although Dr. Goodrich testified that the claimant’s work activities at SNET from 1991 through 1995 were 25% responsible for her deteriorating back condition and subsequent need for surgery, there is no testimony regarding the years 2000 through 2002 which are the specific years that the trial commissioner ordered the § 31-308a benefits for. The claimant herself testified that she believed that she was ultimately terminated from SNET in 2000 because her back condition continued to get worse while working for SNET which caused her to be unable to satisfactorily perform her job duties. Findings, ¶ 25. There was no medical evidence that SNET was responsible for the claimant’s back deterioration from 2000 through 2003. The claimant’s termination in 2000 occurred years after the period that Dr. Goodrich attributed SNET’s responsibility for the claimant’s back deterioration. For this reason it was inappropriate for the trial commissioner to reduce the claimant’s § 31-308a benefits for the 2000 through 2003 period.

Therefore, the claimant’s § 31-308a benefits must be recalculated. The trial commissioner should determine the amount of money that the claimant earned in each year and then subtract that amount from the wages that she could have actually earned by working in a position equivalent to her former position with the respondent-employer. Under the 1990 version of § 31-308a she would be entitled to two-thirds of the difference between those two figures.

Therefore, we reverse the December 24, 2003, Finding and Award of the Commissioner acting for the Seventh District and remand the case to the trial commissioner for a recalculation of benefits consistent with this opinion.