Opinion
CASE NO. 876 CRD-6-89-6
AUGUST 13, 1991
The claimant was represented at the trial level by Carmen Morelli, Esq. The claimant was represented on appeal by Polly L. Orenstein, Esq., Ginsburg Ginsburg.
The respondents were represented by Douglas Drayton, Esq., Pomeranz., Drayton Stabnick.
This Petition for Review from the June 8, 1989 Supplemental Finding and Award of the Chairman acting for the Sixth District was heard April 27, 1990 before a Compensation Review Division panel consisting of Commissioners Andrew Denuzze, A. Thomas White, Jr. and James Metro.
OPINION
The claimant has Petitioned for Review from the June 8, 1989 Supplemental Finding and Award of the Chairman acting for the sixth District. In that Supplemental Finding and Award the trial commissioner found that the claimant suffered a compensable back injury on or about June: 4, 1971. That event was time subject of a Voluntary Agreement approved June 28, 1971 in the Sixth District. Further a November 17, 1977 Finding and Award which was corrected by Order dated November 21, 1977 granted the claimant 156 weeks of Sec. 31-308 C.G.S. benefits commencing February 21, 1975 based 30% permanent partial disability of the low back.
The issues before the trial commissioner at the concluded formal hearing on June 22, 1987 were inter alia, whether the claimant was totally disabled from October 27, 1972 to September 24, 1973 and whether the claimant was entitled to Sec. 31-308a C.G.S. discretionary benefits for the period from February, 1978 through and including June 22, 1987 and thereafter. The trial commissioner concluded that the claimant was not totally disabled from October, 1972 to September 24, 1973. The trial commissioner further found that the claimant was entitled to Sec. 31-308a C.G.S. discretionary benefits but only for the period from "November 1, 1986 through June 22, 1987 and thereafter so long as he continues a reasonable search for work." See Supplemental Finding and Award Paragraphs 14 30.
The claimant Presents the following issues on appeal; (1) whether the trial commissioner erred in concluding that the claimant was not totally disabled from October 27, 1972 September 24, 1973, (2) whether the trial commissioner erred in concluding that the claimant was not entitled to Sec. 31-308a C.G.S. discretionary benefits for the period between February, 1978 and November, 1986 and (3) whether the trial commissioner erred when he denied claimant's Motion to Correct dated November 8, 1989.
The respondent appellees position is that the CRD should not disturb the findings of fact by the trial commissioner and therefore the appeal should be dismissed.
At the outset, we note that several documents and communications were submitted by the claimant after the trial. commissioner's June 8, 1989 Supplemental Finding and Award. All that we consider on review is the record before the trial commissioner. See, Sec. 31-301 (a) C.G.S.; Fair v. People's Savings Bank 207 Conn. 535 (1988). As the aforementioned documents were not part of the trial record we need not consider them. Further if these documents and communications do indeed provide evidence which could arguably alter the trial commissioner's decision the appropriate procedure would be to seek a re-opening of the instant matter pursuant to Sec. 31-315 C.G.S.
We now consider whether the trial commissioner erred in concluding that, the claimant was not totally disabled from October, 1972 through September 24, 1973. Whether a claimant totally disabled is a factual determination. Sgambato v. Simkins Industries, Inc. 8 Conn. Workers' Comp. Rev. Op. 131, 825-CRD-3-89-2 (1990) citing Damelio v. Anaconda, Inc., 4 Conn. Workers' Comp. Rev. Op. 31, 281 CRD-5-83 (1987), no error, 15 Conn. App. 805 (1988) (per curiam), cert. denied, 208 Conn. 814 (1988). As such we will generally not disturb the conclusions of a trial commissioner unless found, without evidence, based on impermissible or unreasonable factual inferences, or contrary to law. Fair, supra.
In the instant matter the claimant refers to various evidence contained in the record from the proceedings Most notably claimant relies on the evidence and the testimony and reports of Dr. David Poverman, M.D. Claimant cites the October 13, 1977 Transcript of the Formal Hearing p. 16 where Dr. Poverman testified that the claimant was totally disabled from October 27, 1972 through May 1, 1974. The claimant argues that this medical evidence was not in conflict and therefore the trial commissioner should have found that the claimant totally disabled between October 27, 1972 to September 24, 1973. However, Dr. Poverman testified that his first examination of the claimant was September 24, 1973 and that he had no knowledge of the claimant or his situation prior to September 24, 1973. Additionally, Dr. Poverman testified that his knowledge of the claimant on his initial examination was based on the claimant's history as told to him by the claimant and Dr. Poverman's findings upon examination. See Transcript of October 13, 1977 Formal Hearing pp. 6, 28-29. Further there was evidence before the trial commissioner which indicated that in the six months prior to October 27, 1972 the claimant participated in a special training program permitting him training as a draftsman. See Supplemental Finding and Award paragraphs #7 and #8. Certainly trial commissioner is free to reject certain testimony even if seemingly uncontradicted. See e.g. Barrila v. Blake, 190 Conn. 631 (1983). Thus the trial commissioner's conclusion that the claimant did not sustain his burden of proof as to his claim for total disability between October 27, 1972 and September 24, was not based on unreasonable or impermissible factual inferences, without evidence or contrary to law.
We next address the second issue raised, whether the trial commissioner erred in concluding that the claimant was not entitled to Sec. 31-308a C.G.S. benefits for the period between February, 1978 and November, 1986. An award for Sec. 31-308a C.G.S. benefits is within a trial commissioner's discretion. Section 31-308a C.G.S. provides:
We note for the record that the claimant's brief and Reasons of Appeal claims that the trial commissioner erred as to Sec. 31-308(a) (sic) benefits. As the period for which claimant seeks benefits followed claimant's receipt of Sec. 31-308 benefits and the only award ordered pertained to Sec. 31-307 and Sec. 31-308a we assume that the claimant meant to dispute the time period for the Sec. 31-308a benefits. See Foss v. Continental Forest Industries, 5 Conn. Workers' Comp. Rev. Op. 1, 341 CRD-6-84 (1988).
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 the 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 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 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 determined upon a similar basis by the commissioner.
Generally the requirements of proof in a claim for Sec. 31-308a C.G.S. discretionary benefits will contain some of the elements of a Sec. 31-308 (a) C.G.S. claim along with the pure factual determination, allocated to the trial commissioner and considered discretionary regarding the loss of claimant's earning capacity vis-a-vis claimant's age, physical incapacities, work restrictions, nature of injury, etc.
The quantum of proof to be used by the trial commissioner for awarding discretionary Sec. 31-308a C.G.S. benefits has to be considered within the totality of the evidentiary hearings including claimant's personal testimony. Here the trial commissioner determined that the claimant was not totally disabled. (See Supplemental Finding and Award paragraph 28). The trial commissioner herein had intimate knowledge of the claimant's situation, having sat on three different formal hearings concerning issues claimed by the claimant with hearings held in the late 1970's through June, 1987. The claimant testified to his rehabilitation school efforts, his ability to walk three miles a day, drive a car and perform light work within his restriction all of which the claimant himself was aware of and adequately conveyed in his testimony.
The trial commissioner's finding that the claimant was not entitled to Sec. 31-308a C.G.S. benefits during the period through 1986 during which time the claimant failed to do any job searches, was adequately grounded in factual testimony offered by the parties and contained in the record from below.
On appeal, the claimant argues that he was unaware of his obligation to search for work between 1978 and 1986. Claimant further argues that in light of his sixth grade education and limited command of the English language his failure to comprehend his obligation to search for work should be excused. We disagree. Sympathetic as we may be to people who are lacking certain English language skills, we cannot carve out whole exceptions to our requirements for proof in claims for benefits. Cf. Kica v. Mattatuck Manufacturing Co., 930 CRD-5-89-10 (decided March 7, 1991).
Finally the claimant asks us to find error in the failure of the trial commissioner to grant claimant's Motion to Correct under date of November 8, 1989. For the reasons stated above we find no error.
It should be noted and the claimant is hereby advised that any additional Sec. 31-308a C.G.S. discretionary benefits beyond the date of the closed formal hearing namely June 22, 1987 would additional hearings including the submission of evidence the trial commissioner to enter ongoing awards.
We therefore affirm the June 8, 1989 Finding and Award.
Commissioners A. Thomas White, Jr. and James Metro concur.