CRB Case Annotations re: Section 31-308a

Respondents challenged commissioner’s award of temporary partial disability benefits pursuant to General Statutes § 31-308 (a), contending that claimant was ineligible because she had been fired for cause. CRB affirmed, holding that evidentiary record demonstrated statutory elements were satisfied and case law indicates that determination of eligibility for temporary partial disability benefits is subject to commissioner discretion. Noting that impediment to claimant returning to light duty was not employer’s inability to accommodate work restrictions but internal corporate policy, CRB stated it was reluctant to issue opinion suggesting that employers could be inoculated from future temporary partial disability claims by firing injured employees or erecting bureaucratic barriers which would prevent employees from returning to work. CRB affirmed commissioner’s denial of motion to correct. See also, Gfeller, § 31-301 Factual findings; § 31-308 (a).

Claimant appealed trial commissioner’s dismissal of claim for § 31-308a C.G.S. benefits after claimant failed to attend formal hearing with no notice. Claimant’s attorney, who was in attendance and requested a continuance in light of his inability to reach the claimant prior to hearing, subsequently filed a Motion to Reopen and Vacate the commissioner’s decision. CRB reversed, holding that in light of affidavit appended to claimant’s motion setting forth circumstances surrounding claimant’s failure to attend formal hearing, affirmance of commissioner’s decision was inconsistent with remedial nature and humanitarian purpose of Workers’ Compensation Act. CRB also noted that previous proceedings had been properly postponed by agreement. See also, Greene, § 31-301. Factual Findings.

Claimant, a volunteer fire fighter and acting fire chief, challenged trial commissioner’s denial of disability benefits during time span for which medical reports demonstrated claimant was temporarily totally disabled. CRB affirmed trier’s denial of temporary total disability benefits, except for two brief periods following date of injury and subsequent surgery, noting that although claimant was unable to perform duties of volunteer fire fighter, he resumed administrative functions of fire chief shortly after both date of injury and surgery, allowing for reasonable inference that administrative functions carried out by claimant constituted employment situation tailored to claimant’s disability. CRB affirmed trier’s denial of temporary partial disability benefits in light of client’s testimony reflecting that he never attempted to look for alternate employment and was therefore not in compliance with statutory requirements for receipt of temporary partial disability benefits. CRB affirmed denial of Motion to Correct and Motion for Articulation. See also, Rowland, § 7-314a, § 31-301. Factual Findings. § 31-307(a).

Claimant, in wide-ranging appeal, challenged trial commissioner’s decision to rely on opinion of Respondents’ Medical Examiner rather than opinion of treating physician in determining whether claimant had reached maximum medical improvement and concomitant entitlement to permanency benefits. CRB affirmed in accordance with Tartaglino v. Dept. of Correction, 55 Conn. App. 190, cert. denied, 251 Conn. 929 (1999) (acceptance or rejection of expert opinion is within trier’s discretion). CRB denied claimant’s Motion to Submit Additional Evidence on grounds that material claimant sought to introduce was duplicative of evidence already in record and/or could have been obtained either prior to formal hearing or within some fixed time following hearing. See also, Dwyer, § 31-301. Factual Findings, § 31-301-9, § 31-308(a).

Claimant’s appeal filed more than 20 days after issuance of trial commissioner’s Finding. Late appeal denied CRB of jurisdiction to provide claimant relief. However, even if jurisdiction existed this was essentially a “dueling expert” case where trial commissioner relied on respondent’s expert to find claimant’s injury was essentially self-limiting. See also, Charles, § 31-301 Appeal procedure; § 31-301 Factual findings; § 31-307.

Claimant argued that her disability pension from the respondents should not be considered when calculating benefit level for § 31-308a C.G.S. benefits. Trial commissioner sided with respondents who argued failure to credit the disability pension would constitute a double recovery, citing Iannarone v. State/Department of Mental Retardation, 4138 CRB-7-99-10 (June 15, 2001). CRB affirmed decision on appeal. Disability pensions are treated differently than normal retirement pensions in calculating benefit levels, see Arsenault v Shelton, 5679 CRB-4-11-9 (September 6, 2012). Case of Starks v. University of Connecticut, 270 Conn. 1 (2004) distinguished as in that case mechanism to prevent double recovery was present. See also, Rohmer, § 31-307.

Claimant asserted that he was totally disabled and sought benefits under a Osterlund theory. Trial commissioner reviewed surveillance footage of claimant activities at a bar, and claimant’s testimony, and found claimant had a work capacity. On appeal, claimant argued his expert witness should have been credited that he lacked a work capacity but CRB found as respondent produced expert testimony contesting this claim, commissioner had basis to sustain decision. Issue of § 31-308a benefits remanded for additional findings. See also, Savageau, § 31-307; § 31-301 Factual findings.

Claimant originally appealed trial commissioner’s decision she should undergo detoxification at out of state facility. She also appealed trial commissioner’s decision after granting a Motion to Correct that work searches were prerequisite to § 31-308a benefits. CRB remanded on work search issue. Precedent was work searches not requirement prior to receipt of benefits. Parties had previously dealt with issue and the record at the formal hearing did not establish the issue was fully considered by the litigants before commissioner reached a decision. See also, Tedesco, § 31-301 Factual findings; § 31-301-4; § 31-294d.

Respondent municipality challenged trial commissioner’s decision to exclude claimant’s service-connected retirement pension earnings from calculations for temporary partial disability benefits. CRB affirmed pursuant to Rinaldi v. Enfield, 82 Conn. App. 505 (2004) in which Appellate Court distinguished between treatment of service-connected pensions and disability pensions when calculating temporary partial disability benefits. CRB found trier properly rejected respondent’s assertion that decision violated public policy against double recovery given that § 7-433b (b) C.G.S. prevents claimants who bring claims under § 7-433c C.G.S. from receiving “windfalls.” CRB held that depriving claimants who receive service connected retirement pensions of § 31-308a C.G.S. benefits would punish claimants for having been injured. CRB affirmed trier’s denial of respondent’s Motion to Correct. See also, Arsenault, § 7-433b, § 31-301 Factual findings, § 31-301-4.

Claimant with prior permanency injured again with increase of disability rating to 32.5%. Claimant argued that while prior stipulation referenced 20% rating, he had received payment only equal to 11.25%; which he maintained should be respondent’s credit. Trial commissioner found credit in stipulation was for 20%. CRB upheld on appeal. Stipulation stated it was in full settlement of claimant’s permanency award; respondents entitled to credit against what was “payable” at that time. See also, Ouelette, § 31-301. Factual findings, § 31-349, § 31-308(b).

Houghton v. Andover, 5317 CRB-2-08-1 (January 27, 2009), appeal dismissed, A.C. 30778 (Oct. 23, 2009).

CRB affirmed trial commissioner’s order to appellant to reimburse the appellee insurance carrier for sums it paid to the claimant for § 31-308a benefits following the CRB’s holding in Houghton v. Andover, 4949 CRB-2-05-6 (May 18, 2006) [Houghton I]. In Houghton I, CRB held 31-308a benefits were the liability of the second injury carrier where a prior injury was a substantial factor in causing the disability sustained following the second injury. See, Houghton, § 31-301. Appeal procedure. See also, Houghton v. Andover, 4949 CRB-2-05-6 (May 18, 2006) 31-349.

Trial commissioner denied claimant’s demand for 31-308a benefits with prejudice. CRB ruled pursuant to Serluca v. Stone & Webster Engineering, 5118 CRB-8-06-8 (July 13, 2007) trial commissioner cannot bind future commissioners should claimant file future claim for such benefits. See also, Russell, § 31-301. Factual findings, § 31-307, § 31-307a.

Claimant appealed denial of § 31-308a benefits asserting that trial commissioner improperly concluded claimant was not willing and able to work due to leaving light duty job. Claimant also asserted he had received 13 weeks of § 31-308a benefits and was entitled to remainder available under statute. CRB upheld trial commissioner. This board is extremely unlikely to find that a commissioner has abused his or her discretion in awarding or denying § 31-308a benefits” citing Johnston v. Thames Permacrete Corp., 15 Conn. Workers’ Comp. Rev. Op. 402, 2278 CRB-2-95-2 (August 16, 1996). Claimant also had no expectancy in continued benefits when they were awarded for a limited duration.

Claimant’s claim for § 31-308a benefits based on a 1986 injury denied. See also, § 31-301. Factual findings.

McCarthy v. Hartford Hospital, 5079 CRB-1-06-3 (March 8, 2007), aff’d, 108 Conn. App. 370 (2008), cert. denied, 289 Conn. 910 (2008).

Award of benefits affirmed. Claimant returned to full-time work after hand surgery and remained for two years before voluntarily retiring due to physical pain and discomfort, and fear of decline in job performance. She described her efforts to find suitable work afterward, and detrimental effects of injuries on her ability to perform part-time jobs she had attempted. No medical evidence addressed effect of movement restriction on her work capabilities. Held: § 31-308a does not mandate a specific medical assessment as a means of demonstrating reduced earning capacity on the part of a claimant with a documented permanent disability. Here, voluntary agreements established permanency ratings to hand and foot, doctor had recommended restricting repetitive motion, and claimant testified as to nature and extent of compensable injury on her ability to work. Claimant had also e-mailed employer a list of her work difficulties prior to retiring, while respondent presented no evidence that it took steps to accommodate those problems. Performance of part-time job following retirement was acceptable means of demonstrating earning capacity. Trier was entitled to find claimant’s testimony credible.

Pizzuto v. State/DMR, 4959 CRB-5-05-6 (June 23, 2006), rev’d., 283 Conn. 257 (2007), motion for reconsideration denied, S.C. 17840 (September 24, 2007).

The trial commissioner awarded benefits to claimant and assessed them against initial injury after claimant suffered second aggravating injury to same body part. CRB reversed. Benefits must be assessed against the second injury if it aggravates injury to the same body part. CRB decision in Fantano v. Stop & Shop, 4946 CRB-3-05-5 (May 19, 2006) distinguished, as initial injury there was not aggravated.

Respondents claimed Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005) prevented commissioner from considering additional evidence on issue of temporary partial disability. CRB rejected argument. Claimant entitled to present additional evidence regarding this issue. See also, Duffy, § 31-275(1); § 31-288(b), § 31 -294b, § 31-300, § 31-301. Factual findings, § 31-307.

Trial commissioner can credit respondent’s physician’s opinion that claimant had light duty work capacity without accepting respondent’s claim they offered suitable work. Whether claimant was ready and willing to work and whether respondents offered appropriate light duty work was a factual determination for trial commissioner. A job search is not a prerequisite. Remanded for further findings on issue of entitlement for § 31-308(a) benefits. See also, Bennett, § 31-297, § 31-301. Factual findings.

See, Hicking, § 31-301(f).

Respondent terminated claimant for nonattendance and relied on Levey, 3649 CRB-4-97-7 (June 30, 1998) to deny responsibility for partial incapacity award. CRB found Levey did not make termination a legal bar to awarding 31-308a benefits, rather creates a factual issue for the trial commissioner to consider regarding whether claimant has declined light duty position. Trial commissioner determined claimant was willing to work, but respondent failed to offer appropriate light duty position and obstructed claimant’s return with a “Catch-22” barrier regarding medical documentation. See also, Lopez, § 31-301. Factual findings and § 31-300.

CRB reversed commissioner’s order of § 31-308a benefits with a remand order to recalculate benefits without reducing the liability for a period that the claimant worked for a subsequent employer. There was no evidence in the record to support the reduction for specific years covered by trier’s order.

CRB affirmed commissioner’s dismissal of claim for additional 31-308a benefits. See also, Brown, § 31-301-4, § 31-298.

Trial commissioner declared that “no additional § 31-308a orders will be entered without evidence submitted by the claimant of an effort to increase his working hours . . . and/or supplement his income with an additional position and/or a major change in his medical status.” Subsequent trial commissioner found that this order did not preclude him from awarding additional benefits under principle of res judicata. CRB agreed. First commissioner had authority to determine entitlement through date of formal hearing, based on claimant’s status at that time. Commissioner did not have power, however, to circumscribe a future commissioner’s discretion to determine whether alleged change in circumstances is sufficient to justify additional compensation. Language of initial order can only estimate conditions prerequisite to further award. Also, CRB ruled that definition of “earnings” under § 31-308a did not include claimant’s settlement with Second Injury Fund for concurrent employment portion of § 31-308a claim. See also, Dunlevy, § 31-298, § 31-310.

CRB affirmed trier’s award of § 31-308a benefits to a retired firefighter who was collecting Social Security old age benefits. Although the claimant’s physician believed the claimant was totally disabled due to his heart condition, the claimant continued to work at his part-time job. Acceptance of Social Security old age benefits does not in and of itself bar receipt of § 31-308a benefits. Additionally, the CRB affirmed the trier’s finding that the claimant’s curtailing of the number of hours he worked was related to his physical condition and not claimant’s concern as to the adverse tax consequences of earning over a certain amount.

CRB adhered to holding in Iannarone v. State/Department of Mental Retardation, 4138 CRB-7-99-10 (June 15, 2001), infra, in affirming trier’s decision to include state disability retirement pension in amount claimant is “able to earn” pursuant to § 31-308a. Claimant did not offer evidence to demonstrate which state disability statute her pension originated under, and trier accordingly did not make finding that offset for workers’ compensation benefits was required by disability statute. CRB explained that, if it is to fairly consider overruling precedent on the basis of clear conflict between Iannarone and language of State Employees’ Retirement Act, statutory provisions applicable to claimant must be reliably established. Supreme Court reversed CRB decision, holding that State Employees’ Retirement Act expressly mandates offset of certain workers’ compensation benefits against disability retirement, no matter which state retirement plan applies to claimant (Tier I or Tier II). Court also noted that commissioner was required to consider provisions of retirement act, as interpretation of such was necessary to resolve case, even if record was inadequate regarding which retirement plan was in force here.

Rinaldi v. Enfield, 4459 CRB-1-01-11 (December 27, 2002), aff’d, 82 Conn. App. 505 (2004).

CRB ruled that “earnings” under § 31-308a do not include longevity-based retirement pensions, regardless of whether underlying claim is capped by § 7-433b(b). Social security old-age insurance benefits are also omitted from definition of “earnings.” See also, Rinaldi, § 7-433c, § 31-278.

Supreme Court relied on its reasoning in companion case of Starks, supra, in holding that workers’ compensation benefits under § 31-308a should not be offset by state disability retirement benefits. See also, Smedley, § 31-301. Appeal procedure.

CRB followed reasoning of McEnerney v. U.S. Surgical Corp., 4252 CRB-3-00-6 (October 16, 2001), aff’d, 72 Conn. App. 611 (2002), cert. denied, 262 Conn. 916 (2002), infra, in ruling that § 31-308a(b) did not give commissioner discretion to override durational limitation on benefits in § 31-308a(a). See also, Laneve-Annino, § 31-301. Factual findings, § 31-308(a).

See, Siebold, § 31-297 (claimant’s physical condition is necessary component of § 31-308a claim for lost earning capacity).

Claimant continued to work at prior nursing job 30 hours per week rather than 40. Trier found her qualified for two months of benefits. CRB affirmed, as under circumstances, trier could have concluded that claimant’s performance of this job was indicative of her earning capacity. See also, Fox, § 31-294d, § 31-301. Factual findings, 31-308(a).

CRB affirmed award of § 31-308a benefits. Evidence readily supported claimant’s position that light duty work offered by employer was unsuitable to her needs. CRB remanded for recalculation of wage differential, as claimant was working only 16-hour weeks, but was not restricted by doctor from working longer hours at light duty job. Direct comparison between average weekly wage at time of injury and gross weekly wages from part-time light duty job is insufficient; current earning capacity must be used instead. See also, Richardson, § 31-308(a).

CRB affirmed trier’s dismissal of § 31-308a claim where testimony of vocational specialist supported finding that earning capacity was not reduced by compensable injury, and trier considered factors listed in statute.

Whether claimant meets statutory criteria of § 31-308a is factual question for trier. Here, claimant’s evidence was found not credible. Denial of award affirmed. See also, Belanger, § 31-313. prior decision at Belanger, 4238 CRB-6-00-5 (June 23, 2000), § 31-301. Appeal procedure and subsequent decision Belanger, 4684 CRB-6-03-6 (July 28, 2004), § 31-301. Appeal procedure, § 31-301. Factual findings.

Bryan v. Sheraton-Hartford Hotel, 3320 CRB-1-96-4 (January 29, 2002), aff’d, 74 Conn. 901 (2002), cert. denied, 263 Conn. 916 (2003).

Pursuant to Appellate Court remand, CRB considered appeal from trier’s original decision, affirming finding that claimant suffered compensable back strain injury, but did not meet burden of proof that she also sustained shoulder injury or any internal/gastrointestinal or other injuries, including lost pregnancies. Additionally, no error found in trier’s denial of § 31-308a benefits. See also Bryan, § 31-301. Factual findings. See related cases at, Bryan, 3730 CRB-1-97-11 (May 7, 1999), rev’d, 62 Conn. App. 733 (2001), § 31-298; Bryan, 3320 CRB-1-96-4 (March 12, 1997), § 31-301-9.

McEnerney v. U.S. Surgical Corp., 4252 CRB-3-00-6 (October 16, 2001), aff’d, 72 Conn. App. 611 (2002), cert. denied, 262 Conn. 916 (2002).

Claimant would have been entitled to continued § 31-308a benefits had she not moved to Florida. Unsuccessful work searches during year prior to move did not alter applicability of statutory language. Section 31-308a(b) does not grant trier additional authority to award benefits, but instead constitutes a restriction that permits awards only where circumstances warrant such compensation, even if claimant satisfies technical criteria of § 31-308a(a). CRB could not review constitutionality of in-state work restriction.

Trier awarded additional permanency benefits without making necessary subordinate findings regarding diminished earning capacity. CRB remanded for articulation, as insufficient information existed for review. See also, DiBello, § 31-300. prior decision at Dibello, 3970 CRB-7-99-2 (May 2, 2000), aff’d, 67 Conn. App. 361 (2001), cert. granted, 260 Conn. 915 (2002), appeal withdrawn (June 26, 2002), § 31-278, § 31-294c, § 31-301. Appeal procedure, § 31-301-9, § 31-348.

CRB affirmed trier’s inclusion of state disability retirement pension in amount claimant was “able to earn” for purpose of benefit calculation. Goal of wage replacement benefits is to replenish former income source, and claimant would be receiving more than he had prior to injury if he collected pension plus two-thirds of full difference between current earnings and wages he would have earned but for his compensable injury. Remanded because trier used net pension proceeds rather than gross pension proceeds in benefit calculation, as 1989 version of statute used pre-tax figures. NOTE: CRB’s holding regarding inclusion of state disability retirement pension is no longer viable following Supreme Court decision in Starks, supra. See also, Iannarone, § 31-310, § 31-314. prior decision at Iannarone, 4310 CRB-7-99-11 (December 6, 2000), § 31-301. Appeal procedure.

Respondents appealed trier’s award of § 31-308a C.G.S. benefits, arguing that claimant had not searched for work. For injuries occurring prior to July 1, 1993 (the effective date of Public Act 93-228), § 31-308a does not specifically require a claimant to seek work, and job search is not only evidentiary means by which commissioner may determine that claimant qualifies for discretionary award of benefits. Award affirmed.

Commissioner not required to address issue of § 31-308a benefits on remand where no permanency was awarded. See also, Mahoney, § 31-308(b). prior decision at Mahoney, 16 Conn. Workers’ Comp. Rev. Op. 17, 3025 CRB-4-95-3 (October 4, 1996), § 31-294d, § 31-298.

Claimant argued that trier erred in denying further § 31-308a benefits without finding that his injury had changed, and without finding that suitable work was available for him. CRB found no merit to these arguments, as § 31-308a benefits are discretionary in nature, and the trier properly considered the statutory factors, including the employee’s training, education, marketability, and the severity of his injury. Claimant sustained a 15% permanent partial disability of the back, and was able to perform numerous activities. The trial commissioner found that the claimant’s training, including on-the-job training, qualified him for numerous employment possibilities. Thus, no abuse of discretion in denying further § 31-308a benefits.

Employer argued that trier erroneously awarded § 31-308a benefits after finding that the claimant did not search for work within his light duty capacity. CRB explained that evidence other than a job search may provide proof that claimant is unemployable, or is unable to make the same wages as he did previously. Here, trial commissioner found that claimant was able to perform light duty work during the period at issue, but that his employer did not provide him with suitable work. Moreover, claimant required light duty work for only a very limited time. Under these circumstances, trial commissioner could infer that claimant was willing and able to work, but that searching for work for such a limited time would be futile.

CRB affirmed trial commissioner’s award of additional permanent partial disability benefits with respect to its duration. At the time of 1992 injury, statute did not restrict the length of an award to the duration of the claimant’s permanency award. However, CRB remanded with respect to the amount of benefits, as there was no evidence to establish wage differential beyond 1994. Trier improperly relied upon maximum weekly wage as the applicable compensation rate based on its use in a prior award of § 31-308a benefits that was based solely upon a stipulation by the parties. See also, Moran, § 31-278.

Claimant was attending workers’ rehabilitation classes three days per week. Inquiries into light duty employment for jobs at which she had prior experience were fruitless. No requirement to exhaust all potential job-seeking avenues. Trier could reasonably have concluded that she had no earning capacity. Award of benefits affirmed.

Trial commissioner’s denial of § 31-308a benefits to claimant affirmed. Claimant did not show that he was willing and able to work in the state of Connecticut as required by § 31-308a(b), and the comments of the claimant and a vocational expert indicated to the commissioner that he was not motivated to return to work or inclined to obtain work in Connecticut. Claimant also provided no information regarding the current earnings of an employee working at his former position. However, CRB noted that the trier should not categorically ignore the job that the claimant was performing at the time of his injury in determining his lost earning capacity simply because he had only been working at that job for two months.

Panel affirmed trial commissioner’s dismissal of claim for further discretionary benefits. Commissioner considered the appropriate statutory factors in making her decision. Additional findings relating to claimant’s failure to maximize earning capacity were not erroneous; commissioner is not prohibited from taking said factor into account, although claimants are not required to introduce evidence of maximized earning potential in order to establish earning capacity for § 31-308a claim. See also, Pontoriero, § 31-301. Factual findings.

Trial commissioner’s denial of benefits affirmed by CRB. See also, Degiacomo § 31-307, § 31-308(a).

Trier’s award of § 31-308a benefits affirmed. Statutory change restricting duration of discretionary benefits to number of weeks of permanent partial disability benefits took effect after the injury, and is inapplicable to this case. Law does not specifically require a claimant to seek work; commissioner may determine that a claimant qualifies for benefits by other means. Here, nature of injury and its severity justified an award without requiring the claimant to perform further work searches that would be fruitless. However, CRB noted for future cases that once a claimant turns 65 and begins receiving Social Security retirement checks, a showing that circumstances warrant the continued receipt of § 31-308a benefits should be required.

Perri v. Mitchell Motors, 16 Conn. Workers’ Comp. Rev. Op. 242, 3259 CRB-6-96-1 (June 24, 1997).

See, Perri, § 31-300.

Bowman v. Jack’s Auto Sales, 16 Conn. Workers’ Comp. Rev. Op. 223, 3384 CRB-1-96-7 (June 18, 1997), aff’d, 54 Conn. App. 289 (1999).

Award of discretionary benefits affirmed, as prior decision in Bowman, 13 Conn. Workers’ Comp. Rev. Op. 192, 1721 CRB-1-93-5 (March 22, 1995), settled this matter; change in duration of award was simply due to adjustment of permanency period. See also, Bowman, § 31-308(b). See subsequent decision Bowman, 3622 CRB-8-97-6 (August 26, 1998), § 31-301. Appeal procedure, § 31-315.

Amount of money currently earned by claimant as a part-time secretary was not the only possible evidence of her earning capacity under § 31-308a. See also, Hines, § 31-301. Appeal procedure, § 31-315.

It was within the discretion of the trial commissioner to deny the claimant’s request for § 31-308a benefits as the claimant did not demonstrate that his earning power was adversely affected by his ten percent permanent partial disability of his lumbar spine, which the trial commissioner determined to be his only compensable injury. See also, Figueroa, § 31-294d, § 31-301. Factual findings.

Permanent partial disability not disputed, and commissioner considered age, work history, claimant’s gout, and reduction of earning capacity in making award. However, he reached no conclusion regarding cause of current disability, and actual extent of disability as it affects claimant’s ability to work is not explained. Further, he made no finding as to how much someone working in claimant’s former job currently earns. Remanded for further findings. See also, Stefenski, § 31-296 (discontinuation of payments).

Commissioner awarded claimant 60 weeks of additional benefits, denying anything further. Claimant argues that limiting award was abuse of discretion. Affirmed; appropriate factors were clearly considered in the decision, and commissioner did not have to explain why he chose 60 weeks for length of award. See also, Loomis, § 31-301. Appeal procedure.

Trial commissioner was not required to disregard job search evidence just because claimant failed to list name of specific person contacted; credibility issue. Circumstances of case adequately supported award of additional benefits. See also, Rodriguez, § 31-349.

CRB reversed the trial commissioner’s award of § 31-308a benefits. Specifically, the trial commissioner found that the claimant was capable of light duty work and also found that the employer offered the claimant light duty employment within his treating physician’s restrictions. Accordingly, it was an abuse of discretion for the trial commissioner to award the claimant any benefits under § 31-308a.

Evidence of claimant’s physical limitations and reduced earning capacity, in conjunction with consideration of other statutory factors, supported award of § 31-308a benefits. Failure to submit searches for higher-paying jobs did not require denial of award, as claimant held several jobs, and was found to have a strong work ethic and to have tried to maximize earning capacity. No error in awarding benefits beyond length of permanent partial disability, as 1988 injury occurred prior to change in statute.

Caprio v. Upjohn Company, 15 Conn. Workers’ Comp. Rev. Op. 373, 2123 CRB-3-94-8 (July 12, 1996), dismissed for lack of final judgment, A.C. 16230 (October 30, 1996).

The CRB affirmed the trial commissioner’s award of § 31-308a benefits. The claimant had worked as a Chemical Operator B when he was injured, and subsequently the employer down-sized and laid off several persons in this category. The employer argued that the claimant, due to his seniority level, would have been laid off if he had been working, and thus argued that the earnings of a Chemical Operator B should not be used in determining the claimant’s benefit rate pursuant to § 31-308a. The CRB rejected the employer’s argument as the trial commissioner had made an inference that this figure constituted “the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury” as required by § 31-308a.

Commissioner denied § 31-308a benefits. Affirmed. Commissioner found little or no evidence regarding the scope of the claimant’s current disability; claimant thus failed to meet burden of proving entitlement to benefits. See also, Bailey, § 31-278, and § 31-298. See subsequent decision Bailey, 3461 CRB-3-96-11 (April 9, 1998), § 31-315 and Bailey, 4516 CRB-2-02-4 (May 8, 2003), § 31-298, § 31-307a.

Grant/denial of benefits under § 31-308a is discretionary. As long as statutory factors are considered, decision must stand. See also, Kulhawik, § 31-301. Appeal procedure.

Serletti v. New Haven, 15 Conn. Workers’ Comp. Rev. Op. 111, 2199 CRB-3-94-11 (January 11, 1996).

CRB affirmed trial commissioner’s denial of further § 31-308a benefits after claimant had received 163 weeks of such benefits where claimant owned a limousine service which grossed over $100,000 per year but showed a yearly loss.

Commissioner is entitled to base award of further § 31-308a benefits on change in claimant’s condition. Where requisite statutory factors were considered in findings, and claimant’s condition remained unchanged, commissioner was entitled to deny benefits. Also, motion to submit decision of Social Security Administration as additional evidence denied; SSA standards in adjudicating total disability differ from the § 31-308a standards, and decision would not have affected that reasoning.

McGowan v. Waterbury Farrell, 14 Conn. Workers’ Comp. Rev. Op. 319, 1964 CRB-1-94-2 (September 15, 1995), aff’d, 43 Conn. App. 917 (1996)(per curiam).

Claimant sought discretionary benefits. Commissioner dismissed claim. Affirmed; one of four medical reports prescribed no disability, and commissioner could rely on that. Statutory factors were taken into account. No abuse of discretion. See also, McGowan, § 31-294d.

Trier’s denial of discretionary wage loss benefits supported by record below. See also, Golino, § 31-308(b), Permanent partial. Scheduled/Unscheduled.

Claimant was awarded discretionary benefits while attending school pursuant to DWR-approved vocational rehabilitation program. He voluntarily reduced work hours to attend classes and study. Held, although commissioner’s discretion is not completely unfettered, fact that claimant voluntarily reduced his hours to attend school did not prevent him from receiving benefits under § 31-308a. Humanitarian spirit of Workers’ Compensation Act would not be served by penalizing a claimant who chooses to pursue another career after being permanently disabled from his former line of work by a compensable injury, especially where DWR has approved educational courses and is not providing claimant with financial benefits. Section 31-283a does not preclude commissioner from awarding benefits to claimant whose earning capacity has been compromised by injury.

Dextraze v. Lydall, Inc., 14 Conn. Workers’ Comp. Rev. Op. 52, 1615 CRB-2-92-12 (May 10, 1995).

See, Dextraze, § 31-308(a), § 31-308(b), § 31-310.

Claimant failed to seek work after retirement despite medical opinion that she was capable of light duty employment, and did not submit medical reports supporting claim for temporary total disability benefits. Held, statute may not require work searches, but procedure is accepted as evidentiary basis to demonstrate willingness to work. Sufficient evidence existed to support factual determination that claimant was not entitled to further benefits.

No error in conditioning further discretionary benefits on a change in the claimant’s medical condition. Commissioner has discretion to set duration of benefits, and appropriate factors were considered in this case.

Goodwin v. Stop & Shop, 13 Conn. Workers’ Comp. Rev. Op. 301, 1830 CRB-3-93-9 (April 21, 1995).

Injury caused claimant to transfer from meat to grocery department. Commissioner based calculation of benefits in part on overtime pay formerly received, finding that, while overtime was unavailable in the grocery department, meat department still had overtime available. Held, § 31-308a use of “wages” instead of “average weekly earnings” does not exclude overtime pay. See, Vecca v. State, 29 Conn. App. 559 (1992). Fact that overtime work was not guaranteed in union contract did not preclude finding that claimant would actually have earned overtime if he had stayed in the meat department, thus earning more money.

Respondents argued that commissioner improperly determined claimant’s earning capacity. Held, statute does not require presentation of evidence that claimant is “maximizing” earning capacity; performance of a job is acceptable evidence of earning capacity. Averaging of job salaries is acceptable method of determining earning potential. See also, Genovesi, § 31-301. Factual findings.

Commissioner’s decision to deny additional benefits based solely on medical report showing decrease in percentage of disability. Held, commissioner’s discretion broad, but not unfettered; commissioner failed to address findings showing diminished earning capacity in decision to deny benefits. Error not to consider other factors besides decrease in disability percentage, i.e. participation in DWR-approved program. Remanded.

Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 1721 CRB-1-93-5 (March 22, 1995), aff’d, 54 Conn. App. 289 (1999).

Commissioner found that claimant not totally disabled, but permanent partial impairment of hands had unusually high impact on him, so 104 weeks of discretionary benefits awarded. Held, claimant not specifically required to seek work to qualify for benefits, although job searches are encouraged; claimant here was not realistically employable in another capacity, and commissioner did not err in making award. See also, Bowman, § 31-301. Factual findings. Subsequent decision at Bowman, 16 Conn. Workers’ Comp. Rev. Op. 223, 3384 CRB-1-96-7 (June 18, 1997) and Bowman, 3622 CRB-8-97-6 (August 26, 1998), § 31-301. Appeal procedure, § 31-315.

Commissioner found that claimant was capable of performing job offered to him, for which he failed to report. No factual basis thus existed for discretionary award, as there was nothing to indicate what, if any, loss of earning capacity the claimant incurred. See also, Wrighten, § 31-301. Factual findings.

Job searches are not exclusive means to prove availability of work. Based on testimony of claimant and deposition testimony, trier’s award of benefits based on evidence will not be disturbed. See also, Lennon, § 31-301. Appeal procedure.

Benefits are not warranted under § 31-308a or § 31-307(a) if a claimant is capable of employment but chooses not to pursue it. Here, commissioner found claimant was physically able to perform other work, but did not attempt to find it or seek vocational retraining. Limited command of English language by claimant no excuse for failure to seek light duty work.

Capasso v. Fusco Corporation, 13 Conn. Workers’ Comp. Rev. Op. 30, 1622 CRB-3-93-1, 1920 CRB-3-93-11 (November 8, 1994).

The fact that claimant returned to some type of construction work after being released for light duty, with physician recommended construction work restrictions, fails to support a finding to deny § 31-308a benefits. Evidence and underlying purpose of the workers’ compensation act supports trier’s award of benefits. See also, Capasso, § 31-301. Appeal procedure.

Trier’s finding regarding claimant’s earning capacity and resulting wage loss supported by evidence. See also, Salz, § 31-308(b).

A finding that claimant was partially disabled does not mandate an award for additional benefits as § 31-308a benefits are discretionary. See also, Woznicki, § 31-307.

Within trier’s discretion to decide whether compensable injury continued to adversely affect claimant’s earning capacity. See also, Burgos, § 31-294d and § 31-301-9.

Trier’s finding that claimant’s inability to find employment was not the result of his work related injury properly supported a denial of § 31-308a benefits.

Remanded. Trier misapplied statutory language as to the calculation of benefits, claimant’s earning capacity and claimant’s entitlement to benefits. Trier erred in applying compensation rate as part of the computation of claimant’s wage loss difference. See also, Camp, § 31-294(e). Medical care refusal.

Civardi v. Norwich, 12 Conn. Workers’ Comp. Rev. Op. 100, 1376 CRB-2-92-1 (February 28, 1994), aff’d, 231 Conn. 287 (1994).

Reversed. CRB held employer had standing to present evidence relative to employee’s § 31-308a claims where liability had been transferred to the Fund. See also, Civardi, § 31-284b and § 31-349.

Remanded. Trier’s award of § 31-308a discretionary benefits inconsistent with trier’s finding that claimant’s evidence of diminished earning capacity was not persuasive.

Evidence before trier supports conclusion claimant could return to work as a result of carpal tunnel injuries. However, trier found claimant was totally disabled due to a condition unrelated to the compensable carpal tunnel injuries, therefore, any diminution in earnings or requisite work capacity did not meet criteria to award § 31-308a benefits.

Graziano v. St. Mary’s Hospital, 11 Conn. Workers’ Comp. Rev. Op. 10, 1230 CRD-5-91-5 (February 8, 1993).

Claimant entitled to receive § 31-308a benefits for a 1981 injury and temporary total benefits for a separate 1985 injury simultaneously. This is not considered double compensation. Trier found with or without the injury of 1985, claimant’s diminished earning capacity would have continued. Remanded to determine amount of benefits due. See also, Graziano, § 31-296, and § 31-310.

Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 1111 CRD-4-90-9 (January 28, 1992).

Remanded as trier’s conclusion claimant was able to work, however no work was found or available during period in question lacks evidentiary factual findings. Work search procedure is an informally accepted evidentiary basis to demonstrate a willingness to work. However, it is not the only evidentiary means by which a claimant may demonstrate reasonable efforts to find work. See also, Goncalves, § 31-301. Factual findings, § 31-308a.

Lagueux v. Veilleux, 9 Conn. Workers’ Comp. Rev. Op. 177, 876 CRD-6-89-6 (August 13, 1991).

Trier’s denial of § 31-308a discretionary benefits will not be disturbed where testimony and record below indicate claimant failed to perform any job searches during period in question. Lack of comprehension of § 31-308a requirements does not support claim for entitlement. See also, Lagueux, § 31-307, § 31-315.

Traylor v. Poquonnock Bridge Fire District, 8 Conn. Workers’ Comp. Rev. Op. 59, 788 CRD-2-88-11 (March 23, 1990).

Remanded to determine method of calculating benefits using statutory procedure. See also, Traylor, § 31-307.

Vincent v. New Milford, 8 Conn. Workers’ Comp. Rev. Op. 27, 761 CRD-7-88-8 (February 5, 1990).

Section 31-308a benefits when construed with § 31-307 and § 31-309 cannot exceed basic compensation rate.

Hicks v. State/Dept. of Administrative Services, 6 Conn. Workers’ Comp. Rev. Op. 111, 429 CRD-5-85 (February 23, 1989), no error, 21 Conn. App. 464 (1990), cert. denied, 216 Conn. 804 (1990).

Awards under this section are within trial commissioner’s discretion and will not be upset unless conclusion reached was an abuse of discretion. See also, Hicks, § 31-300, § 31-307, § 31-308(c).

Fappiano v. Nutmeg Concrete Inc., 6 Conn. Workers’ Comp. Rev. Op. 29, 652 CRD-3-87 (September 27, 1988).

Trial commissioner must compute actual amount due and that such computation must be based on evidence.

Foss v. Continental Forest Industries, 5 Conn. Workers’ Comp. Rev. Op. 1, 341 CRD-6-84 (March 9, 1988).

Trial commissioner’s use of unemployment compensation rate to determine earning capacity not permissible. Further, chamber maid’s duties will not be administratively noticed as light duty and benefits under § 31-308a are applicable after payment for specific.

DeGeorge v. Casolo, 1 Conn. Workers’ Comp. Rev. Op. 34, 24 CRD-7-80 (May 26, 1981).

CRB Case Annotations re: Section 31-308a

Additional compensation.