Summary
In Kulhawik we held "[t]he claimant has the burden of persuading the commissioner to make an award, and he was not able to do so here."
Summary of this case from In re Morales v. Marlin FirearmsOpinion
CASE NO. 2116 CRB-2-94-8
FEBRUARY 1, 1996
The claimant was represented by Mark W. Oberlatz, Esq., O'Brien, Shafner, Stuart, Kelly Morris, P. C.
The respondents were represented by David Schoolcraft, Esq., Trowbridge, Schoolcraft Basine, P.C.
This Petition for Review from the July 27, 1994 Finding and Dismissal of the Commissioner acting for the Second District was heard May 5, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. Tracy and Amado J. Vargas.
OPINION
The claimant has petitioned for review from the July 27, 1994 Finding and Dismissal of the Commissioner acting for the Second District. He argues on appeal that the trial commissioner abused his discretion in failing to award benefits under § 31-308a. We affirm the trial commissioner's decision.
Initially, we note that the claimant did not file Reasons of Appeal in accordance with the requirement of Administrative Regulation § 31-301-2. This renders his appeal defective and subject to dismissal. Jagush v. Litton-Winchester Electronics, 7 Conn. Workers' Comp. Rev. Op. 1, 609 CRD-7-87 (June 9, 1989). Notwithstanding the respondents' failure to raise an objection on those grounds, we are entitled to consider this defect in our decision.
Moreover, even if this board were to overlook the absence of the Reasons for Appeal, we would still be compelled to affirm the trial commissioner. A commissioner's decision to grant or deny benefits under § 31-308a is discretionary. If the statutory factors are considered by the trial commissioner in making his or her decision, and the claimant's earning capacity is his focus, this board cannot tamper with the trier of fact's judgment. See McGowan v. Waterbury Farrell, 1964 CRB-1-94-2 (decided Sept. 15, 1995); Richmond v. General Dynamics Corp./Electric Boat Division, 13 Conn. Workers' Comp. Rev. Op. 345, 1825 CRB-2-93-8 (April 27, 1995); O'Connor v. United Parcel Service, 13 Conn. Workers' Comp. Rev. Op. 204, 1741 CRB-4-93-5 (March 30, 1995).
Section 31-308a provides in relevant part: [T]he commissioner . . . may award additional compensation benefits for such partial permanent disability equal to two-thirds [now seventy-five percent] 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 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 the employee's age . . . . The duration of such additional compensation shall be determined upon a similar basis by the commissioner." claimant was 44 years old, had some college education, computer training, hairdresser training, and experience managing the respondent employer's beauty supply store. He noted the claimant's job search efforts from September 1988 through December 1990, and that he found work at the casino in Ledyard in January 1992. He concluded, however, that the claimant had failed to show that he could not have continued managing the beauty supply store were said job available, that his effort to secure replacement work was feeble and undocumented, that he apparently overstated his job restrictions to potential employers, and that he submitted no vocational evidence to support a finding of reduced earning capacity. Thus, the trial commissioner after considering the above requisite factors dismissed the claim.
Here, the claimant sought discretionary benefits after permanent partial disability payments for his April 6, 1987 injury ceased. The commissioner observed that the claimant was 44 years old, had some college education, computer training, hairdresser training, and experience managing the respondent employer's beauty supply store. He noted the claimant's job search efforts from September 1988 through December 1990, and that he found work at the casino on Ledyard in January 1992. He concluded, however, that the claimant had failed to show that he could not have continued managing the beauty supply store were said job available, that his effort to secure replacement work was feeble and undocumented, that he submitted no vocational evidence to support a finding of reduced earning capacity. Thus, the trial commissioner after considering the above requisite factors dismissed the claim.
The claimant argues that the respondents did not present any evidence to support their position that the claimant failed to make an effort to return to his former position as a manager, or that his lifting restrictions could be accommodated. That may be so; however, the commissioner did not find that those allegations were true. He simply concluded that the claimant did not introduce enough evidence regarding job searches and his own vocational limitations to establish entitlement to § 31-308a benefits. The claimant has the burden of persuading the commissioner to make an award, and he was not able to do so here. We cannot change the factfinder's assessment of the evidence and the credibility of the witnesses. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995). As for the claim that the commissioner erred in failing to admit into evidence the report of Dr. Maretz, upon which the claimant's statement of his restrictions was based, we need only say that it was within the commissioner's authority under § 31-298 to exclude the independent medical examiner's report in favor of more recent medical evidence.
The trial commissioner's decision is affirmed.
Commissioners Roberta S. Tracy and Amando J. Vargas concur.