Opinion
CASE NO. 632 CRD-4-87
JUNE 9, 1989
The claimant was represented at the trial level by Robert J. Nicola, Esq., Owens, Schine, Nicola and Donahue, and on appeal by Mark DeGennaro, Esq.
The respondents were represented by Nancy S. Rosenbaum, Esq., Law Offices of Rosenbaum and Brennan.
This Petition for Review from the August 27, 1987 Finding and Dismissal of the Commissioner for the Fourth District was heard December 2, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Rhoda Loeb and Andrew Denuzze.
OPINION
Claimant seeks review of the Fourth District August 27, 1987 Finding and Dismissal. Claimant was working the first shift in the paint shop of the Sikorsky Aircraft Division. On or about June 14, 1983 he sustained chemical injury to his sinus and bronchial passages resulting from exposure to paints and paint solvents. At that time he was in Labor Grade 5 earning $11.41 per hour. The plant physician advised against resumption of work in the paint shop because of the deleterious exposure involved. Claimant received temporary total disability benefits from June 14, 1983 to August 22, 1983. Circa August 11, 1983 the employer offered him a second shift position at $11.46 per hour in the Overhaul and Repair Dynamic Component Evaluator section. Claimant refused this position for personal reasons having nothing to do with any physical impairment or restrictions. Later he accepted a first shift job at $9.48 per hour. The trial Commissioner concluded that no loss of earning capacity had been proved and, therefore, claimant was not eligible for benefits under Sec. 31-308(a).
The appellant argues that the employer's failure to offer claimant a Labor Grade 5 job on the first shift and the offer of a lower paying job on that shift constituted proof of diminished earning capacity. He argues further that the commissioner was incorrect in including the shift differential premium in the $11.46 per hour job offered, i.e. that the hourly rate for that job should have been calculated minus the shift premium. In that way, the commissioner would have to conclude that there was a diminution in earning capacity as measured by the lower hourly rate in both jobs offered.
Sec. 31-308(a) provides in pertinent part:
If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to sixty six and two thirds per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such employee prior to his injury and the amount he is able to earn after such injury. . . . If the employer procures for an injured employee employment suitable to his capacity, the wages offered in such employment shall be taken as the earning capacity of the injured employee during the period of such employment.
Ferrara v. Clifton Wright Hat Co., 125 Conn. 140, 142 (1939) defined "able to earn" "as to one not actually employed. . . (as) the amount he is capable of earning if employed — the equivalent of earning capacity." In the instant case there was evidence presented to the trial Commissioner from which he could reasonably conclude that the amount claimant was able to earn after the injury was greater than the amount he actually earned prior to the injury. Without an impairment to claimant's earning capacity there can be no award for partial incapacity under Sec. 31-308(a). The statutory language mandates that payments shall only be made where there is a difference between the wages earned by an employee in a position comparable to the position held prior to the injury and the amount the employee is able to earn after the injury. In this case as the claimant was able to earn a sum greater than that which he earned prior to his injury there was no impairment of his earning capacity and, therefore, no benefits were due and payable under Sec. 31-308(a).
We, therefore, affirm the Fourth District Commissioner's Finding and Dismissal.
Commissioners Rhoda Loeb and Andrew Denuzze concur.