CRB Case Annotations re: Section 31-308(a)

Claimant was retired correctional nurse who asserted total disability and need for further spinal surgery was due to workplace injuries. After a hearing where video evidence was presented showing claimant supervising and working on home renovation project, commissioner denied majority of claimant’s bid for temporary total disability benefits. Commissioner also did not rule on whether latest surgery was compensable. On appeal, CRB affirmed findings on disability as backed by probative evidence. On issue of medical treatment, CRB noted parties had agreed at start of formal not to address issue and commissioner was not obligated to rule at this time, but matter could be considered at further proceedings citing Martinez-McCord v. Judicial Branch, 5055 CRB-7-06-2 (February 1, 2007). See also, Carey, § 31-394d; § 31-301 Factual findings; § 31-307.

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; § 31-308a.

Claimant asserted back injury from lifting at work and initially treated at walk-in near work. Later treated at family physician & ER near home and was deemed partially and totally disabled for various periods. Respondent never returned to work and did not respond to letter seeking him to come back light duty. Employer terminated claimant. Claimant asserted total disability and claimed he had not gotten letter. Trial commissioner did not accept medical evidence of continued total disability and found claimant had declined light duty work. Claimant appealed & CRB affirmed; sufficient factual evidence supported commissioner’s decision. See also, Bard, § 31-301 Factual findings; § 31-307.

Claimant asserted that his medical condition and need for treatment, including a spinal cord stimulator, was due to a compensable back injury. He also asserted he was presently totally disabled & commissioner accepted that argument. Trial commissioner found claimant’s experts persuasive and awarded benefits. CRB affirmed on appeal. While claimant engaged in various hobbies, there was evidence on the record in which the trial commissioner could find that this did not prove the claimant had a work capacity. See also, LaLuna, § 31-294d; § 31-307.

Respondents appealed trial commissioner’s decision to award temporary total disability benefits to claimant who had previously reached maximum medical improvement and received permanent partial disability benefits. Respondents contended trier failed to properly apply standard set forth in Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010). CRB affirmed, noting that although trier did not specifically articulate that he had applied Marandino “test,” factual findings provided more than adequate basis for inferences that claimant was temporarily totally disabled and claimant’s ongoing difficulties since date of injury satisfied Marandino standard. CRB also held that evidentiary record provided basis for award of benefits pursuant to Osterlund v. State, 135 Conn. 498 (1949). CRB did not find meritorious respondents’ claims of error pertaining to trier’s alleged failure to address “material and relevant facts,” lack of specificity regarding payments due and owing to claimant, and denial of respondents’ motion to correct and motion to articulate. With regard to respondents’ contentions that findings pertaining to settlement discussion and medical treatment went beyond scope of issues noticed for formal hearing, CRB deemed such findings “harmless scrivener’s error.” See also, Gustafson, § 31-301. Factual Findings, § 31-301-3, § 31-307.

Claimant asserted periods of total and partial disability subsequent to compensable injury. Trial commissioner found claimant persuasive and awarded benefits. Respondents appealed arguing that claimant’s medical evidence was inadequate and his effort to find work within his restrictions insufficient to award § 31-308 (a) benefits. CRB affirmed award. While “ignorance of the law” did not excuse claimant, precedent is that job searches are not a prerequisite for receiving benefits. Totality of circumstances including claimant’s age and English language skills could be considered. Trial commissioner also determined respondents did not offer light duty work to claimant. See also, Katsovich, § 31-301 Factual findings; § 31-307.

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, § 31-308a.

Claimant challenged as abuse of discretion trial commissioner’s decision to limit scope of trial de novo on contested Form 36 to issue of maximum medical improvement and bifurcate issue of work capacity for future hearing. Claimant also contended trial commissioner erroneously relied on orthopedist’s opinion in concluding that claimant’s pain management treatment had reached maximum medical improvement. CRB affirmed, noting that subject Form 36 reflected respondents’ intention to convert temporary partial disability benefits, which by definition contemplate a work capacity, to permanent partial disability benefits, and claimant failed to apprise respondents in advance of hearing that claimant would be presenting a total incapacity claim. CRB found trier properly relied on orthopedist’s opinion, obtained through a Commissioner’s Examination, in determining maximum medical improvement and extent of claimant’s disability, noting that report did not reference claimant’s pain management regimen and trier agreed to set down issue of medical treatment for future hearings after claimant asserted respondents had discontinued pain management treatment on basis of report. CRB affirmed trier’s denial of claimant’s Motion to Correct. See also, Rivera, § 31-296, § 31-301 Factual Findings, § 31-307.

Claimant asserted injury picking up tires at work. Treating physician determined claimant was first partially disabled and then totally disabled but claimant continued to work until terminated for disciplinary reasons. Claimant then involved with father-in-law’s activities and surveillance video presented asserting he had work capacity. Trial commissioner found claimant sustained work injury but had work capacity until day he left work. Commissioner then found claimant totally disabled from date of termination until date of surveillance video. CRB vacated and remanded award of total disability benefits. Claimant’s departure from work not medically related and treating physician recanted opinion as to total disability at his deposition. Record does not support award of § 31-307 benefits. Respondents filed Motion for Articulation following decision; CRB denied motion; opinion was unambiguous trial commissioner needed to hold new hearing on what post-termination benefits the claimant was entitled to. See also, Tarantino, § 31-301 Factual findings; § 31-307.

Trial commissioner found claimant failed to seek work within his limitations and was therefore ineligible for § 31-308(a) C.G.S. benefits. Claimant appealed decision and CRB affirmed trial commissioner. See also, Jamieson, § 5-145a; § 31-300; § 31-301 Factual findings; § 31-307.

Claimant was previously found to suffer from compensable injuries and noncompensable depression. Claimant sought temporary partial benefits but trial commissioner did not find claimant made credible effort to find work. Claimant appealed arguing that inability to find work due to compensable injuries. CRB affirmed decision; evidence was the claimant’s inability to find work was attributed to the noncompensable depression he was suffering.

Claimant sustained two compensable injuries, one in 2010 and second in 2011. Evidence presented was that claimant was a surgical candidate prior to the second injury, but had not been rendered unable to perform job. Following second injury claimant unable to perform job. Trial commissioner concluded that pursuant to Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) the insurance carrier on the risk at time of second injury responsible for all medical treatment and indemnity benefits. Carrier appealed and CRB affirmed Finding. Evidence on record could reasonably lead trial commissioner to conclude claimant’s condition made materially and permanently worse as a result of second injury; expert witnesses ascribed enough weight to second injury as cause for surgery to support “substantial contributing factor” test. See also, Wilson, § 31-294d; § 31-301 Factual findings.

Claimant relocated to Florida after her injury and sought temporary partial disability benefits, claiming she should be able to consider her present home area her “locality” for purposes of the statute. Trial commissioner ruled that “locality” meant a community within the state of Connecticut. CRB upheld denial. Legislative history supports narrow reading of the statute.

In a wide-ranging appeal, claimant challenged trial commissioner’s failure to find respondents unduly delayed indemnity payments and denial of interest, penalties and attorney’s fees. Claimant appealed trier’s determination that hands-free telephone device, IPad and aquatic therapy did not constitute reasonable or necessary medical care such that claimant was entitled to reimbursement for out-of-pocket costs. CRB affirmed findings relative to indemnity payments and medical care, noting that record supported trier’s inferences regarding claimant’s credibility and trier reasonably relied upon evidence in support of respondents’ assertion that indemnity payments were timely. CRB also held that trier reasonably inferred that claimant did not meet burden of proof necessary to establish that medical treatment for which she sought reimbursement satisfied standard for curative care as articulated in Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (June 19, 1984). CRB remanded on issue of whether respondents unduly delayed mileage reimbursements as findings suggested trier may not have reviewed all of claimant’s exhibits in support of that claim of error. CRB denied claimant’s two motions to file additional evidence. See also, Gendron, § 31-288; § 31-294d; § 31-300; § 31-301. Factual findings; § 31-301-4; § 31-301-9.

Claimant sought continued temporary partial disability benefits. Trial commissioner approved Form 36, determining claimant no longer impaired from employment and any continued lumbar spine problems due to prior noncompensable injury. CRB affirmed decision. Entitlement to § 31-308(a) benefits are a factual issue for the trial commissioner with burden of persuasion on claimant. Shepard v. Wethersfield Offset, 4886 CRB-1-04-11 (October 20, 2005), aff’d, 98 Conn. App. 682 (2006); evidence on record did not persuade trial commissioner. See also, Shepard, § 31-301 Factual findings; § 31-296; § 31-301-3.

Claimant injured on job and was terminated after doing light duty work. Parties disputed circumstances under which claimant left job. Claimant later worked for other employer, but lost that job after a DUI. Claimant lived with ill mother during this period and did not present documentation as to job searches. Trial commissioner limited claimant’s bid for § 31-308(a) C.G.S. benefits to period he was actually working, discounting job search testimony. Claimant appealed and CRB upheld trial commissioner. Claimant needed to persuade trial commissioner he was actively seeking work during period he sought § 31-308(a) benefits. Circumstances as to dismissal from new job relevant as to whether claimant was entitled to benefits. See also, Gelinas, § 31-301 Factual findings; § 31-308(b); § 31-301-9.

Claimant appealed from decision to approve Form 36 filed by respondent, who asserted termination from light duty job for cause grounds to halt temporary partial benefits. CRB upheld trial commissioner; decision was judgment call. Levey v. Farrel Corp., 3649 CRB-4-97-7 (July 30, 1998). See also, Morales, § 31-301 Appeal procedure; § 31-301 Factual findings; § 31-300.

Respondent Second Injury Fund appealed finding of compensability and award of temporary total and temporary partial disability to construction worker who sustained back injury after cutting and carrying wood for uninsured employer. Fund also contended trier failed to determine temporary partial wage rate and argued award of temporary partial benefits waiving job searches pending approved Form 36 constituted deprivation of due process. CRB remanded for determination of temporary partial wage rate and struck order waiving job searches but affirmed balance of decision, holding that medical record supported compensability finding and trier had discretion to credit claimant’s testimony over that of employer and witness. CRB found trier’s language regarding Form 36 recited customary utilization procedure and was not a due process deprivation. CRB affirmed trier’s denial of Motion to Correct despite identifying two harmless errors. See also, Nalysnyk, § 31-275(1), § 31-275(16), § 31-301. Factual Findings, § 31-301-4.

Employer appealed from trier’s decision awarding claimant § 31-308(b) benefits. CRB reversed on basis that trier’s factual findings did not support award given that trier had determined doctor’s opinion on which award was predicated was not credible. CRB noted that file did contain approved jurisdictional voluntary agreement stating claimant had sustained a concussion and record indicated respondents had tendered to claimant permanency voluntary agreements which claimant refused to sign, ostensibly because she did not believe she had yet reached maximum medical improvement. CRB reversed trier’s finding of compensability of claimant’s neurogenic bladder because expert who made diagnosis relied upon same doctor’s opinion found not credible by the trier. CRB reversed trier’s determination that claimant’s motor vehicle accident was a substantial contributing factor in her subsequent emotional and psychological issues, concluding such a finding was inconsistent with trier’s other findings relative to claimant’s alleged brain injury. CRB determined trier’s denial of corrections proffered by respondents constituted error. See also, Jones, § 31-275(1) § 31-301, Factual findings, § 31-301-4.

Claimant sought temporary partial benefits for period starting in 2007 asserting link to compensable 1997 injury. Respondents challenged sufficiency of evidence for award. CRB upheld award. Claimant’s treating physician offered sufficient medical evidence; trial commissioner not obligated to rely on respondent’s expert; reprise of issues in Huertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007). Trial commissioner was satisfied claimant proffered adequate documentation of job search; CRB must defer to such judgment.

See also, Grant, § 31-301. Factual findings, § 31-307, § 31-301-9, § 31-301. Appeal procedure.

See Chiriboga, § 31-355(b), § 31-301. Appeal procedure.

Employer appealed from award granting claimant § 31-308(a) benefits, contending medical reports in evidence were legally insufficient to support the trial commissioner’s conclusions regarding causation and whether injury was a substantial contributing factor in her ongoing disability per McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987). Employer argued that several medical reports appeared to be inconsistent, therefore award of benefits was not justified. At trial, claimant testified as to apparent inconsistencies, which were primarily due to her communications with her physician concerning her motivation to return to work. Employer sought to introduce additional medical report obtained after close of trial, motion denied as report was not germane to issues addressed at trial. CRB affirmed. See also, Love, § 31-275(1), § 31-301. Factual findings, § 31-301-9. Additional evidence.

Trial commissioner awarded claimant temporary total disability during period after respondents sent claimant home from light duty job. Respondents appealed as there was no medical evidence on record claimant was totally disabled during this period. CRB remanded as there was inadequate basis for temporary total award, bureaucratic limitations, not medical condition caused claimant to be sent home, See also Kennedy, § 31-307, § 5-142(a).

Claimant had obtained specific award under § 31-308(b), trial commissioner awarded temporary partial benefits after claimant had additional surgery and had not reached new level of maximum medical improvement. Respondents appealed. CRB upheld trial commissioner. See also, Esposito, § 31-308(b).

Testone v. C.R. Gibson Co., 5045 CRB-5-06-1 (May 30, 2007), aff’d, 114 Conn. App. 210 (2009), cert. denied, 292 Conn. 914 (2009).

Claimant bears burden of proof to receive an award for temporary partial disability. Trial commissioner determined evidence adverse to claimant was more credible. See also, Testone, § 31-300, § 31-301. Factual findings, § 31-307.

Pro Se claimant appealed finding and award asserting greater entitlement to temporary partial benefits. CRB upheld trial commissioner. Case is similar to Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006). CRB must review findings solely to determine if they are supported by evidence. Evidence supported trial commissioner’s findings and CRB dismissed appeal. See also, Bond, § 31-294 d, § 31-307, § 31-301. Factual findings, § 31-308(b).

Claimant sought payment of temporary partial benefits due after 1990 injury at 2005 formal hearing. Respondent counterclaimed that they had overpaid benefits due at that time. Trial commissioner denied both claims due to laches and collateral estoppel as claimant had sought additional benefits regarding his 1990 injury at a 2000 formal hearing, and did not raise issue of unpaid 308(a) benefits at that time. Claimant appealed dismissal. CRB upheld trial commissioner. Lapse of time and prior opportunity to raise issue was sufficient evidence that claimant had “slept on his rights.” Public policy favors prompt resolution of claims, See Duni v. UTC, 239 Conn. 19 (1996). Legal precedent disfavors piecemeal litigation Meadow v. Winchester Repeating Arms Co., 134 Conn. 269 (1948), Hines v. Naugatuck Glass, 4816 CRB -5-04-6 (May 16, 2005). Finding of laches is invariably fact driven, factual finding herein is not clearly erroneous. See also, Kalinowski, § 31-301. Factual findings, § 31-294d.

Trial commissioner ordered § 31-308(a) benefits for claimant who persuaded the commissioner his foot injury was the sequelae of an accepted back injury. Commissioner found treating physicians credible and determined respondent’s examiner made a material error in his report, which the commissioner’s examiner apparently relied on. See also, Ben-Eli, § 31-301. Factual findings.

See, Richardson, § 31-298 (evidence of earning capacity could be offered on remand where it was not directly discussed at trial). See also, Richardson, § 31-301. Appeal procedure. Prior case at Richardson, 4413 CRB-3-01-7 (August 5, 2002), § 31-308(a), § 31-308a.

Trial commissioner denied partial disability payments for period after claimant was terminated from light duty job. Evidence supported finding claimant was terminated for an unauthorized absence, hence precedent in Levey v. Farrell Corp., 3649 CRB-4-97-7 (July 30, 1998) gives commissioner discretion to deny an award. CRB will not overturn factual findings, and arguments raised by claimant asserting improper motivation by respondent and questioning a witness’s credibility were not properly raised at formal hearing. See also, Corcoran, § 31-301. Factual findings, § 31-301. Appeal procedure and Corcoran, 4948 CRB-2-05-5 (July 26, 2006).

Claimant sought temporary partial disability. Trial commissioner had discretion on whether to grant award and claimant did not establish actual wage loss. CRB upheld denial. See also, Dudley, § 31-294d, § 31-301. Factual findings, § 31-307.

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.

The Board affirmed the commissioner’s award of 31-308(a) benefits for a limited period. Trier’s conclusion that claimant did not prove entitlement to 31-308(a) benefits beyond that period must stand unless unsupported by law or evidence, as no Motion to Correct was filed. See, Cogle, § 31-296 (respondents were subject to no agreement or order to continue benefits following claimant’s temporary return to full duty, so no Form 36 required); See also, Cogle, § 31-301. Factual findings.

Shepard v. Wethersfield Offset, 4886 CRB-1-04-11 (October 20, 2005), aff’d, 98 Conn. App. 682 (2006), cert. denied, 281 Conn. 911 (2007).

CRB affirmed trier’s dismissal of temporary partial disability benefit claim. Trier did not find claimant’s testimony persuasive, and did not find that medical evidence conclusively established causal link between claimant’s dermatitis and exposure to chemicals present around printing presses. Evidence regarding actual wage loss was also unclear. Though claimant was not required to exhaust every possible job-seeking avenue in order to establish diminished earning capacity, trier was entitled to consider fact that claimant took job selling business forms that did not take advantage of his training or expertise. Appellate Court’s affirmance held that causal link between dermatitis and exposure to chemicals was undisputed, but upheld CRB on finding that claimant had not proven actual wage loss.

CRB affirmed trier’s award of benefits beyond date of formal hearing where medical documentation supported conclusion claimant’s condition will worsen. See also, Hicking, § 31-301. Appeal procedure, § 31-301. Factual findings.

Remanded for trial commissioner’s articulation as to basis for denial of 31-308(a) benefits for the period between January 2, 2002 and November 24, 2002 where trier assigned credibility to the opinion of medical expert and claimant whose testimony supported a different conclusion. See also, Algiere, § 31-301. Appeal procedure.

See, Sellers, § 31-298.

CRB upheld trial commissioner’s finding that claimant was temporarily partially disabled due to hypertension for four-month period, but entitled to no weekly benefits due to his failure to accept light-duty work. Evidence supported light-duty capacity. Trier was not required to resolve in claimant’s favor ambiguous testimony of claimant and fire department chief as to whether light duty work was actually offered, as claimant has burden of proving entitlement to benefits.

See, Sullivan, § 31-301. Factual findings, § 31-275(1).

Respondents appealed part of order that waived claimant’s job searches on a prospective basis and ordered § 31-308(a) benefits beyond the date of the formal hearing. CRB affirmed trier’s conclusion work searches not required where no light duty work would be available due to claimant’s restrictions and the fact that respondent had no light duty work. Commissioner can award § 31-308(a) benefits beyond the date of the final hearing. Respondent is not precluded from filing Form 36 where circumstances change following the formal hearing.

Claimant was entitled to temporary partial disability benefits, as her sedentary work restrictions were due to cubital tunnel symptoms that had not yet resolved or reached maximum medical improvement. Filing of Form 36 did not require cut-off of benefits, as testimony of claimant’s vocational rehabilitation specialist and her inability to secure employment after exhaustive job searches could be taken as evidence that claimant would not have found light duty employment during three-month period prior to commencement of work search process. CRB also noted that job searches are not actually required by § 31-308(a); other evidentiary means may be used to show entitlement to benefits, depending on totality of circumstances. See also, Murray, § 31-294d, § 31-296. Voluntary agreements (discontinuance of payments), § 31-300, § 31-301. Factual findings, § 31-307.

See, Laneve-Annino, § 31-301. Factual findings (evidence supported denial of temporary partial disability award). See also, Laneve-Annino, § 31-308a.

Doctor’s reports discussing claimant’s symptoms were prepared one or two months after expiration of three-month § 31-308(a) award. This did not render them irrelevant. Evidence indicated that diminished work hours were due to physical limitations discussed in reports. See also, Fox, § 31-294d, § 31-301. Factual findings, § 31-308a.

Evidence of claimant’s physical disability and need for surgery was clear, but trier made no findings as to “ready and willing to work” requirement of statute, nor did he determine earning capacity during 28-month stretch of temporary partial disability. Remanded for ruling on whether claimant would have found light duty employment had she been ready and willing to work, or alternatively, extent of her earning capacity. See also, Richardson, § 31-308a.

Trier denied § 31-308(a) benefits where he found that claimant would be entitled to $17,317.08 in benefits (based upon reduced earnings from employer), but already made more than that working at his privately owned business. Claimant had been a truck driver, but light duty restrictions included no driving or heavy lifting; during “light duty” period, claimant commenced work at his ice-cream business. Trier incorrectly used earnings from privately owned business to “offset” § 31-308(a) benefits. Instead, if claimant’s compensable injury partially disabled him so that he could not perform his customary work, and if he meets statutory criteria of § 31-308(a), he may be entitled to wage differential based upon difference between “wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury” and amount he is able to earn (including his earnings at his privately owned business) following his injury.

No error in trier’s award of ongoing temporary partial disability benefits. Board adopted reasoning set forth in Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998) and Morris v. A & A Acoustics, 3429 CRB-7-96-9 (August 8, 1997), where it concluded that Cummings v. Twin Tool Manufacturing Company, Inc., 40 Conn. App. 36 (1996), did not take away discretion of trial commissioner to award continuing temporary total disability benefits. See also, Brinson, § 31-296, § 31-301-4.

Board affirmed trier’s award of four weeks of temporary partial benefits, limited to weeks for which claimant had documented a work search. Claimant argued that § 31-308(a) does not require work search. Board affirmed, explaining that it was within trier’s discretion to require one, especially where, as here, claimant’s credibility was at issue. See also, LaPierre, § 31-296. Voluntary agreements (discontinuance of payments), § 31-307.

Board affirmed trier’s decision denying § 31-308(a) benefits where claimant’s testimony regarding job searches was not credible. Also, board explained that it is claimant’s burden to prove, and not respondents’ burden to disprove, eligibility for § 31-308(a) benefits. See also, Baldino, § 31-298.

Trier found claimant able to care for son daily, and thus awarded § 31-308(a) benefits based on ability to work as day care provider 30 hours per week. Claimant had endured injuries to his arms, and suffered from severe pain. No evidence in record regarding physical ability required to be employable as a day care provider, or whether claimant had such ability (e.g., vocational expert’s report). Remanded.

CRB affirmed trier’s adoption of temporary partial disability benefit calculation method advocated by claimant. Benefit rate should be 75% of difference between wages earned by employee in comparable position (including overtime) and amount earned by claimant after injury, without reducing either part of the mathematical equation by a maximum compensation rate prior to arrival at a differential amount. Respondent did not establish that reference to § 31-310 C.G.S. and its wage tables required trier to rely exclusively on those tables in this situation. See also, Pellegren, § 31-310.

CRB affirmed trier’s finding that claimant was temporarily partially disabled during period between release for light duty work and surgery eight months later. No error in accepting claimant’s explanation that he did not record results of job searches because insurance adjuster told him that his weekly benefits were being converted from temporary total disability to permanent partial impairment payments. Claimant’s testimony that he briefly pursued two independent business ventures, neither of which provided him with any remuneration, did not require inference that claimant was not properly available to work. See also, Ford, § 31-294d, § 31-301. Factual findings, § 31-308(b).

Trier granted a set of Forms 36 filed by respondent, who sought to discontinue claimant’s benefits. Trier declared that sums paid were in nature of temporary partial disability benefits, and made Forms 36 effective over six months after they were filed. CRB reversed award and remanded case for articulation, as claimant apparently had been found to have a work capacity at the time the first Form 36 was filed. Findings did not indicate that he had demonstrated unavailability of light duty work, and it was also unclear whether trier deemed him capable of performing a “recuperative post” that his employer had made available for him. See also, Christman, § 31-301. Appeal procedure, § 31-296.

CRB affirmed award of temporary partial disability benefits. Claimant’s testimony and sporadic job search efforts were sufficient to convince trier that he had made sincere efforts to find work. Statute does not require job searches, nor does it require a gap-free work search record. Trier was not bound to infer that claimant was trying to sabotage job search efforts by showing prospective employers a form detailing his work restrictions. CRB also stated that claimant was responsible for paying back unemployment benefits received concurrently with temporary partial benefits under § 31-258. Employer not entitled to offset. Rental income from the two-unit apartment house claimant owns and manages was not improperly excluded from his earnings under § 31-308(a), as it was essentially passive income, and the claimant’s management duties did not require the type of effort that would be indicative of a work capacity. See also, Rodrigues, § 31-301. Factual findings, Appeal procedure. Subsequent decision at Rodrigues, 4329 CRB-7-00-12 (January 2, 2002), § 31-279-3, § 31-296, § 31-298, § 31-301-9.

CRB affirmed trier’s decision in which he chose to accept some, but not all, of the opinion rendered by the § 31-294f examiner. Trier found that claimant was capable of sedentary work and thus was not totally disabled, and awarded benefits under § 31-308(a). (Delaney, C., DISSENTING) Insufficient findings of fact were made to support an award under § 31-308(a), specifically whether the claimant adequately pursued light duty work. Recommends remand. See also, Zito, § 31-294f.

CRB affirmed trier’s decision. Claimant’s bare assertion that he looked for work was not strong evidence, but trier had discretion to rely upon it in absence of contrary proof. No work search documentation required under § 31-308(a). See also, Mikula, § 31-307b.

Claimant’s cleaning business, which he operated as a sole proprietor outside the Workers’ Compensation Act, did not qualify as concurrent employment under § 31-310, so trier concluded that claimant’s earnings in that capacity should not be included as amounts earned under § 31-308(a). CRB reversed. Section 31-310 sets forth an “average weekly wage,” but § 31-308(a) refers only to “the amount [the claimant] is able to earn after the injury.” Statute does not limit “amounts earned” to sums derived from a qualifying employer under § 31-275(10). Where statutory language is unambiguous, CRB may not divert from its plain meaning. See also, Heene, § 31-300, § 31-310 (citation only). (Vargas, C., DISSENTING) Remedial purpose of Act is inconsistent with the exclusion of concurrent employment wages under § 31-310 and simultaneous inclusion of those same wages for the purpose of § 31-308(a).

The CRB affirmed the trial commissioner’s conclusion that the claimant’s temporary total disability ceased on August 18, 1996, and that his temporary partial disability ceased on October 1, 1996. The determination of the claimant’s periods of disability was dependent upon the weight and credibility of the testimony, including medical evidence, and thus was a determination for the trial commissioner as the finder of fact. See also, Rhodes, § 31-307.

CRB affirmed denial of § 31-308(a) benefits where claimant voluntarily retired at age sixty, did not conduct any job searches, and testified that he did not intend to work.

Where trial commissioner found that claimant’s light duty employment with respondent was terminated for cause, trier was within her discretion in declining to award compensation under § 31-308(a) for temporary partial disability. Wages offered during light duty employment are taken as claimant’s earning capacity under the statute, and trier is entitled to construe termination for cause as tantamount to a refusal to perform suitable light duty work. See also, Levey, § 31-301. Appeal procedure.

CRB affirmed trial commissioner’s denial of § 31-308(a) benefits where trial commissioner found that claimant retired for reasons other than his compensable injury and did not search for other work. See also, Bilotta, § 31-308(b)(c). Subsequent decision at Bilotta, 4106 CRB-1-99-8 (October 5, 2000), § 31-308(b).

The CRB affirmed the trial commissioner’s award of § 31-308(a) benefits where claimant was released to light duty, but was not able to perform the light duty position offered by the employer.

Record supported commissioner’s award of § 31-308(a) benefits to claimant. CRB rejected respondent’s claim that trial commissioner was really awarding § 31-308a discretionary benefits, but failed to make a clear distinction. See also, Anglero, § 31-300.

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

The trial commissioner found that, due to compensable bilateral carpal tunnel, the claimant, a dental hygienist, was not able to work her normal schedule of four days per week. The claimant returned to work with the employer within her physician’s medical restrictions. The trial commissioner thus awarded the claimant benefits pursuant to § 31-308(a) due to the reduction in wages caused by her compensable injury. CRB affirmed.

Claimant who did not seek light duty work, but had a light duty capacity, was denied § 31-308(a) benefits. CRB held trial commissioner entitled to surmise from failure to seek work that claimant had not proven entitlement to benefits. But See, Shimko v. Ferro Corp., 40 Conn. App. 409 (1996). See also, Eligio, § 31-301. Appeal procedure.

With respect to claimant’s alleged back injury, CRB affirmed commissioner’s finding that claimant failed to sustain her burden of proof on causation. With respect to accepted neck injury, commissioner’s (corrected) conclusion that claimant was not entitled to temporary partial disability benefits was reversed due to inconsistent findings, and remanded.

The claimant sustained injuries to his lungs caused by the inhalation of chemicals, which caused the claimant’s lungs to become sensitized, but which did not cause any permanent impairment. The commissioner did not award benefits pursuant to § 31-308(a) because he concluded that the claimant voluntarily left a suitable position for a lower paying position. CRB affirmed the denial of § 31-308(a).

Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995).

See, Webb, § 31-301. Factual findings. Section 31-308(d) discretionary award also implicated.

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

Evidence shows claimant sought suitable light duty work with employer and was refused. Additionally, claimant attempted to find work elsewhere without success before applying for social security retirement benefits. The filing for social security retirement benefits in and of itself does not mean claimant no longer intended to work. Trier’s award of partial wage loss benefits proper. Respondents claim of surprise of trier’s award of § 31-308(a) and § 31-308a benefits due to lack of notice that these issues would be considered at proceeding below unavailing where evidentiary proceedings stretched over six hearing dates in three years and evidentiary testimony indicates partial wage loss benefits were discussed. See also, Dextraze, § 31-308(b)(c), and § 31-310.

See, Angell, § 31-308(b).

Shimko v. Ferro Corp., 13 Conn. Workers’ Comp. Rev. Op. 255, 1744 CRB-7-93-5 (April 18, 1995), rev’d, 40 Conn. App. 409 (1996).

Where commissioner found that claimant had light work capability and had not pursued it, and that finding was supported by evidence, commissioner was not required to award § 31-308(a) benefits. Appellate Court reversed, noting there were insufficient facts to determine whether other suitable work was available. Further, statute does not require as a condition of receiving benefits that claimant prove he sought light work. See also, Shimko, § 31-284b, and § 31-308(b)(c).

Whether claimant satisfies criteria for entitlement to full weekly compensation is a factual issue to be decided by the commissioner. Evidence regarding duplicated job searches, limited search efforts supported decision of commissioner limiting temporary partial disability benefits. See also, Wright, § 31-301. Appeal procedure.

Claimant not entitled to full weekly compensation, as claimant did obtain other work during seventeen weeks of thirty-month disability period on which determination of earning capacity could properly be based. See also, Tyc, § 31-300. Subsequent decision at Tyc, 3061 CRB-5-95-5 (December 10, 1996), § 31-310.

Claimant’s disability due to work related contact dermatitis did not prevent claimant from securing suitable work which did not involve contact with chemical irritants. See, Ferrara v. Clifton Wright Hat Co., 125 Conn. 140 (1939).

Evidence supports trier’s holding that claimant sustained a wage difference as her employment activities were within the limits of her physical capabilities. However, claimant failed to provide evidence to support a finding for an increase in calculating her average weekly wage based on the percentage increase in the average production wage. See also, Besade, § 31-301. Factual findings and § 31-298. prior decision at Besade, 6 Conn. Workers’ Comp. Rev. Op. 83, 593 CRD-2-87 (January 13, 1989), no error, 212 Conn. 441 (1989).

Wage differential should be calculated on the basis of claimant’s weekly earnings not on an hourly basis. See also, Petta, § 31-298, § 31-299b, § 31-300 and § 31-301. Appeal procedure.

Krouse v. Holmgren Subaru, 11 Conn. Workers’ Comp. Rev. Op. 37, 1251 CRD-2-91-6 (February 26, 1993).

Remanded where trial commissioner denied claimant, a car salesman, now employed as a security guard, partial wage loss benefits based on evidence before him. See also, Krouse, § 31-301-9. Additional evidence.

Brunet v. UNC/Aerospace Norwich Division, 10 Conn. Workers’ Comp. Rev. Op. 221, 1204 CRD-2-91-3 (December 17, 1992).

Remanded as evidence fails to support trier’s conclusion claimant was partially disabled due to job related stress during period following total disability. Evidence demonstrated treating physician returned claimant to work with no restrictions and merely expressed the hope that job stress could be reduced.

Miner v. Watertown, 10 Conn. Workers’ Comp. Rev. Op. 100, 971 CRD-5-90-1 (April 28, 1992).

Trier’s finding contingent upon claimant showing a wage loss existed as a result of his light duty status. See also, Miner, § 31-300, § 31-301. Factual findings and § 31-308(b).

Hansen v. Robert Gordon, D.D.S., 8 Conn. Workers’ Comp. Rev. Op. 181, 856 CRD-1-89-4 (December 14, 1990), aff’d, 221 Conn. 29 (1992).

Claimant suffered a compensable partial incapacity as a result of contracting Hepatitis Type B. See also, Hansen, § 31-275(15).

Gordon v. St. Vincent’s Medical Center, 8 Conn. Workers’ Comp. Rev. Op. 22, 758 CRD-4-88-8 (January 18, 1990).

Trier’s determination claimant failed to satisfy necessary statutory elements in her job search efforts will not be disturbed.

Donovan v. United Technologies Corp., 7 Conn. Workers’ Comp. Rev. Op. 5, 632 CRD-4-87 (June 9, 1989).

Employer is not liable for wage differential of lower paying position when a position of pay equal to previous job was refused.

Zipoli v. Watertown Board of Education, 6 Conn. Workers’ Comp. Rev. Op. 158, 679 CRD-5-88-1 (June 1, 1989).

Remanded. Finding lacked subordinate facts to support commissioner’s calculation of § 31-308(a) benefits.

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

If payments were paid pursuant to § 31-308(a) claimant must reimburse unemployment compensation fund under § 31-258.

Fortin v. State/Uconn Health Center, 2 Conn. Workers’ Comp. Rev. Op. 116, 138 CRD-6-82 (January 14, 1985).

Nurse who was attending college full-time to develop skills because she was no longer able to engage in same employment after injury held entitled to half of full pay.

Reiske v. State, 2 Conn. Workers’ Comp. Rev. Op. 84, 128 CRD-4-82 (July 27, 1984).

Claimant awarded compensation at full rate under § 31-308 for period during which she was unable to find appropriate work in the labor area surrounding her home.

Donahue v. Milford, 1 Conn. Workers’ Comp. Rev. Op. 200, 92 CRD-3-81 (November 1, 1982).

Awards under § 31-308 for partial incapacity do not include dependency allowance or cost of living adjustment.

Spaulding v. Thames Valley Steel Corp., 1 Conn. Workers’ Comp. Rev. Op. 39, 3 CRD-2-79 (June 3, 1981).

Claimant to be eligible for compensation need not meet conditions where exceptions are met.

CRB Case Annotations re: Section 31-308(a)

Temporary partial/Wage differential.