Opinion
CASE NO. 2120 CRB-6-94-8
NOVEMBER 28, 1995
The claimant was represented by Paul D. Reynolds, Esq.
The respondents were represented by Richard S. Bartlett, Esq., McGann, Bartlett Brown.
This Petition for Review from the August 9, 1994 Findings of Facts and Award of Compensation of the Commissioner acting for the Sixth District was heard April 21, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Michael S. Miles.
OPINION
The claimant has petitioned for review from the August 9, 1994 Findings of Facts and Award of Compensation by the Commissioner acting for the Sixth District. The claimant argues on appeal that the trial commissioner abused his discretion in denying him additional benefits under § 31-308a C.G.S. He seeks to submit additional evidence in support of his position. We deny the claimant's Motion to Submit Additional Evidence, and affirm the trial commissioner's decision.
The claimant suffered a compensable injury to his left shoulder on June 10, 1981, resulting in a 25 percent permanent partial disability of his left arm. The claimant received permanent partial disability benefits through November 18, 1989, and was awarded discretionary § 31-308a benefits through June 16, 1991. Those benefits were based in part on a 1990 medical report stating that the claimant could do restricted work as long as he avoided reaching overhead and avoided constant repetitive movement.
When the claimant subsequently sought additional discretionary benefits, the trial commissioner noted that no medical reports had been issued providing any further restrictions on the claimant's work duties. He noted the claimant's limited ability to read and write English, and that his employment background was limited to manual labor. The claimant's last job, from which he was laid off in 1988 for economic reasons, involved operating a forklift, and was compatible with his work restrictions. Although the commissioner concluded that the claimant had some restrictions in his employment ability based on his education and training, he decided that the claimant had failed to prove entitlement to § 31-308a benefits. The claimant has appealed that decision.
The claimant argues that the commissioner improperly denied additional benefits under § 31-308a. We note that, as no Motion to Correct was filed, the commissioner's findings of fact must stand. Wright v. Institute of Professional Practice, 1790 CRB-3-93-8 (decided April 18, 1995). We therefore must determine whether those findings support the denial of further benefits. Under § 31-308a, the trial commissioner has discretion to award additional compensation based on the nature and extent of the claimant's injury, his age, training and experience, and the availability of work for persons with his physical condition. The commissioner also has discretion to determine the duration of the award.
We also note that the claimant made no indication that he wished to file a Motion to Correct, such as by seeking an extension of time to file one. The claimant's argument that transcripts were not available for him to review is thus irrelevant, as the trial commissioner's findings can no longer be challenged. The claimant must place the propriety of the findings in issue by requesting the opportunity to file a Motion to Correct before the lack of transcripts becomes an issue. We therefore decline to remand this matter for the production of transcripts. Compare Hebert v. RWA Roofing Sheet Metal, 13 Conn. Workers' Comp. Rev. Op. 43, 2129 CRB-2-94-8 (Dec. 6, 1994) (tapes of hearings were lost; appellant was unable to provide transcript from which CRB could review finding that appellant was principal employer; remanded for further proceedings).
Here, the claimant received 82 weeks of § 31-308a benefits in a prior award, and later sought additional discretionary benefits. The commissioner determined that, despite the claimant's employment restrictions, he had not proven entitlement to further benefits. He specifically noted that the claimant had not shown that his work restrictions had increased since the time of the earlier formal hearings. Thus, in effect, the commissioner would have been extending the duration of the previous § 31-308a award by awarding additional benefits.
We have held that a commissioner is entitled to base further § 31-308a benefits on a change in the claimant's condition, just as he is entitled to deny any discretionary benefits at all.Richmond v. General Dynamics Corp./Electric Boat Division, 1825 CRB-2-93-8 (decided April 27, 1995). In this case, where the claimant's condition had apparently remained unchanged since the initial award of discretionary benefits, and the commissioner considered the requisite statutory factors in his findings, he was permitted to deny additional § 31-308a benefits in the proper exercise of his discretion. We cannot say that his decision was erroneous.
As for the Motion to Submit Additional Evidence, the claimant seeks to introduce a June 3, 1994 decision of an Administrative Law Judge for the Social Security Administration (SSA) determining that the claimant has been entitled to disability compensation under the Social Security Act since January 23, 1992. Administrative Regulation § 31-301-9 allows this board to consider such motions when the additional evidence is alleged to be material and there is a good reason for failure to introduce it below. Although this decision was obviously not available until June 3, 1994, we cannot say that it would likely affect the trial commissioner's decision. The standards of the SSA in adjudicating total disability are not the same standards that this Commission uses to determine whether a claimant is entitled to benefits under § 31-308a. Moreover, a § 31-308a award is discretionary, and seems to have been denied in this case because the claimant did not present any medical evidence of additional work restrictions after receiving his initial 82-week award. We do not consider it likely that the SSA decision would have much of an effect on that reasoning, and thus deny the Motion to Submit Additional Evidence.
The trial commissioner's decision is affirmed.
Commissioners Amado J. Vargas and Michael S. Miles concur.