Earley v. Maryland Insurance Group

The claimant was represented by James Streeto, Esq., Weigand, Mahon & Adelman, 636 Broad St., P.O. Box 2420, Meriden, CT 06450.

The respondents were represented by James Sullivan, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430.

This Petition for Review from the January 23, 1997 Finding and Award of the Commissioner acting for the Eighth District was heard September 5, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 23, 1997 Finding and Award of the Commissioner acting for the Eighth District. In that decision the trial commissioner concluded that the claimant sustained limited compensable injuries to her lungs. Specifically, the trial commissioner found that due to the conditions of her workplace, the claimant suffered from an aggravation of her preexisting asthma condition. In support of their appeal, the respondents contend that the award of temporary total disability benefits is not supported by the evidence. In addition, the respondents contend that the trial commissioner failed to order a credit for the amounts paid to the claimant pursuant to the employer’s disability plan. We find no error.

In the instant case, the trial commissioner found that the claimant’s preexisting asthma was aggravated by exposure to dust at her work place, which caused her to suffer asthma attacks. From December of 1994 through November of 1995, substantial construction was being done at the employer’s facility where the claimant worked, and the resulting dust traveled from floor to floor. The claimant’s physician, Dr. Singh, in a letter dated July 12, 1995, explained that the claimant wished to return to work even though there was construction occurring, and that the claimant “realizes that there is a potential for a recurrence of her asthma symptoms.” (Claimant’s Exh. B). On July 17, 1995, the claimant reported to work with a note from her treating physician, Dr. Singh, but was told to return home by the employer’s personnel officer due to fear of another asthma attack. The claimant offered to work from a computer terminal at her home, but the employer refused. In a subsequent letter dated August 2, 1995, Dr. Singh stated that “my understanding is that there will be ongoing construction until November 1995. In view of this and the recent course of Miss Earley’s asthma, Miss Earley cannot work unrestricted in that environment. This restriction is only applicable when there is construction at the work site.” Id.

We will first address the respondents’ contention that the trial commissioner erred by awarding temporary total disability benefits for the period from July 28, 1995 through September 20, 1995. Whether a claimant is totally disabled from working pursuant to § 31-307 is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994); Haugh v. Leake & Nelson, 12 Conn. Workers’ Comp. Rev. Op. 201, 202-203, 1421 CRB-2-92-5 (March 15, 1994). We will not disturb a trial commissioner’s factual determination unless the conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, we may not disturb the trial commissioner’s conclusions which are dependent on the weight and credibility accorded the evidence. Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994), aff’d., 39 Conn. App. 935 (1995). Under the circumstances of this case, including the claimant’s repeated asthma attacks, the opinion of her treating physician that she could not work unrestricted while construction was being done at her place of employment, and the employer’s decision not to allow her to work, it was reasonable for the trial commissioner to infer that the claimant was temporarily totally disabled from July 28, 1995 through September 20, 1995.

In further support of their appeal, the respondents contend that the trial commissioner failed to provide the employer with a credit for payments made to the claimant under a disability policy. We have explained that whether an employee’s pension plan may be reduced due to receipt of workers’ compensation benefits is an issue for a superior court to determine. Sbona v. City of Middletown, 3449 CRB-8-96-10 (April 23, 1998). Similarly, the employer’s request for a reduction of payments under the employer’s disability plan should also be pursued in that forum. See Lambert v. Bridgeport, 204 Conn. 563 (1987); Maciejewski v. West Hartford, 194 Conn. 139 (1984); Middletown v. Local 1073, 1 Conn. App. 58 (1983).