Opinion
CASE NO. 341 CRD-6-84
MARCH 9, 1988
The claimant was represented by William J. Melley III, Esq., Kenney Brimmer.
The respondents were represented by Edward S. Downes, Jr., Esq.
This Petition for Review from the August 10, 1984 Supplemental Finding and Award of the Commissioner for the Sixth District was heard April 4, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Darius Spain.
OPINION
Claimant sustained a compensable lower back injury September 29, 1980. The Sixth District January 26, 1983 Finding and Award granted Claimant temporary total benefits from the date of injury until December 3, 1980 when she returned to work. On March 19, 1981 Claimant re-injured her back at work and received total benefits until August, 1981 when she was apparently found able to do light work. From August, 1981 until February, 1982 Claimant was paid unemployment compensation benefits of $140 per week. She then secured a position as a machine operator with the M.W. Robinson Company of Middletown, but she was forced to leave after three (3) days due to recurrent back pain.
Thereafter, Claimant made a reasonable search for work but could find none until April or May, 1982 when she began work as a part-time chambermaid twenty-five to thirty hours per week at the Lord Cromwell Motor Inn. For two months after January 18, 1982 Claimant was treated by Dr. Lewis Labbadia, a Middletown chiropractor. He concluded Claimant had a 5% permanent partial impairment of the back and had reached maximum medical improvement on April 6, 1982.
Two Findings and Awards were issued by the Sixth District. The January 26, 1983 Finding was not appealed. Respondents paid twenty-six weeks of permanent partial disability as there ordered. However, the district file indicates they paid at the $182.86 weekly rate set for the September 29, 1980 injury rather than the $213.40 rate pertaining to the later March 19, 1981 injury. If so, payments should be readjusted as the March 19 happening was found to be a new injury not a Sec. 31-307b, C.G.S. recurrence or a relapse.
It is the second decision, the August 10, 1984 Supplemental Finding and Award which the respondents have appealed. They contend the Commissioner erred (1) in awarding Sec. 31-308(a), C.G.S. payments during the period claimant received unemployment benefits and (2) in awarding Sec. 31-308a, C.G.S. additional payments during the time she was employed as a chambermaid. As to the Sec. 31-308(a) amounts, they argue that the unemployment benefit rate cannot be employed as a measure of the reduced earning capacity. For the Sec. 31-308a payments, their argument is that chambermaid's work is not light duty.
Paragraph 12 of the August 10, 1984 Finding and Award found Claimant entitled to $180.00 per week for August, 1981 to February, 1982 before her specific indemnity entitlement from April 6 to October 5, 1982.
Paragraph 9 of the Finding for the weeks from October 5, 1982 to March 5, 1983.
Beyond the bare reference to chambermaid work, the August 31, 1983 hearing transcript offers no evidence whatsoever about activities performed at the Lord Cromwell Inn. Respondents allege it is "common knowledge" that chambermaid's work is not light duty. If so, it is "common knowledge" which has escaped our ken. In all events, absent some evidential basis, we cannot take administrative notice of the nature of such work. It may in fact be that the work was really heavy work which could only be tolerated by the employee on a part-time basis twenty-five to thirty hours per week. In that sense, then it may have become light duty because it was not engaged in for a full week. But all such considerations are purely speculative without any testimonial support. Hence, Respondents' argument in that regard must fail.
Their other contention about the unemployment benefit rate has more merit. By statute, Sec. 31-231a, C.G.S., an individual's unemployment rate is fifty per cent of his average wage during the highest quarter of his base period. The rate as there defined has no relationship to an employee's diminished physical capacity, the concept relevant to chapter 568 considerations. Possibly, the faulty reliance on the unemployment computation was relatively harmless error in that the Commissioner decided Claimant's earning capacity due to the reduced employability caused by her permanent partial impairment was the $136.00 per week of the Lord Cromwell employment. That may have been equally applicable from August, 1981 to February, 1982, the unemployment compensation period, as it was from October, 1982 to March, 1983. Then the $4.00 difference between the weekly unemployment benefit and $136.00 wages earned as a chambermaid would almost be de minimis.
This is not a determination we can make on the record before us. We must therefore remand to the Commissioner for further findings. To provide some guidelines for that reconsideration, we think it essential to avoid confusion and distinguish between Sec 31-308(a) and Sec. 31-308a entitlement. In the instant matter, if claimant is granted benefits during the unemployment period before specific was payable, 31-308(a) applies. After specific is paid, then 31-308a pertains.
Sec. 31-308. Compensation for partial incapacity. (a) 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 injured employee prior to his injury and the amount he is able to earn after such injury, except that when (1) the physician attending an injured employee certifies that such employee is unable to perform his usual work but is able to perform other work, (2) such employee is ready and willing to perform such other work in the same locality and (3) no such other work is available, such employee shall be paid his full weekly compensation subject to the provisions of this section. In either of the above cases, such compensation shall in no case be more than the maximum weekly benefit rate set forth in section 31-309 and shall continue during the period of partial incapacity but no longer than seven hundred and eighty weeks. 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.
Sec. 31-308a. Additional benefits for partial permanent disability. In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for a period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to two-thirds of the difference between the wages currently earned by the employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter, to be determined by the commissioner based upon the nature and extent of the injury, the training, education, and experience of the employee, the availability of work for persons with such physical condition and at the employee's age, but not more than the maximum provided in section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner.
The transcript contains some testimony that the employer failed to offer Claimant any light duty employment after July 24, 1981. If the Commissioner finds that, then he must consider whether Respondents must pay her full benefit rate for the ensuing weeks. If so, then Claimant must reimburse the Unemployment Compensation Fund under Sec. 31-258. Obviously, to reach such a result, the Commissioner must find that the three preconditions set down in Sec. 31-308(a) are satisfied. Similarly, with respect to Sec. 31-308a benefits after the specific period, the Commissioner should make findings sufficient to merit entitlement for those.
The appeal is sustained and the matter is remanded to the trial Commissioner for further proceedings consistent with this opinion.
Commissioners Robin Waller and Darius Spain concur.