Opinion
CASE NO. 4404 CRB-8-01-5CLAIM NO. 800004078
APRIL 3, 2002
The claimant was represented by Bernard Poliner, Esq., Poliner, Poliner, Antin Cienava Rocco, P.C., 516 Main Street, Middletown, CT 06457-3355.
The respondents were represented by Douglas L. Drayton, Esq. and Lucas Strunk, Esq., Pomeranz, Drayton Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the May 24, 2001 Finding and Dismissal of the Commissioner acting for the Eighth District was heard December 14, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
OPINION
The claimant has petitioned for review from the May 24, 2001 Finding and Award of the Commissioner acting for the Eighth District. She asserts on appeal that the trier erred by denying her claim for § 31-308a C.G.S. benefits. We find no error, and affirm the trial commissioner's decision.
The claimant suffered a compensable back injury on June 24, 1992. As a result of that injury and subsequent surgeries, she was left with a 17.5% permanent partial impairment of her back. Following the expiration of her permanency award, she sought an award of benefits pursuant to § 31-308a on the ground that her earning capacity had been reduced by the effects of her injury. The trier found that the claimant had been working as the Wesleyan University Director of Housing at the time of her injury, which position was generally administrative with occasional heavy work. In fact, she injured her back while moving dormitory furniture. Her educational history includes an Associate's Degree, a Bachelor's Degree, and a Master's Degree. The claimant, who was 63 years old at the time of the formal hearings, accepted an early retirement package from Wesleyan in 1992. Currently, her former position pays approximately $35,000 per year.
At the time of the claimant's injury, § 31-308a provided: "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 eighty 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, after such wages have been reduced by any deduction for federal taxes and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal taxes and for the federal Insurance Contributions Act in accordance with section 31-310, 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 one hundred per cent raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of 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.
In 1995, the claimant relocated to the Gainesville, Florida area. She continued to have back trouble, and required back surgery in 1996 and an additional fusion surgery in 1998. She has had difficulty acquiring and maintaining a full-time job since moving to Florida. A vocational rehabilitation specialist, David Soja, testified that given the claimant's excellent work history and education level, her earning capacity was equal to or greater than that which she would be earning were she still the Wesleyan Director of Housing. The trier found that no credible evidence was introduced that the claimant could not still perform a comparable job to that one she held at Wesleyan. He concluded that her 1992 back injury had not resulted in a decreased earning capacity, and dismissed her claim for § 31-308a benefits. The claimant has appealed that decision to this board.
In 1993, § 31-308a was amended to add a provision stating, "Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state." SeeMcEnerney v. U.S. Surgical Corp., 4252 CRB-3-00-6 (Oct. 16, 2001). As that change in the law was made subsequent to the claimant's injury, the fact that she relocated to Florida did not in and of itself preclude her from seeking § 31-308a benefits.
In this appeal, the claimant argues that she had been attempting to seek work in Florida, but had been unable to find a job within her limitations. She testified at trial that she was released to sedentary work, and that she had restrictions that cautioned her not to lift more than 20 pounds and not to sit at a desk for more than three or four hours per day. October 16, 2000 Transcript, pp. 14-15. She contends that the trial commissioner ignored her unsuccessful efforts to find jobs in Florida, and her securing of a job that was expected to pay her $6 per hour for 16 to 24 hours per week. The respondent counters that the claimant's earning capacity was not affected by the restrictions of her injury, and that she voluntarily chose to accept a retirement package from her former employer.
The decision of a trial commissioner as to whether to award a claimant benefits pursuant to § 31-308a is discretionary. Absent an abuse of that discretion, we will not reverse a trier's decision in that regard.Smith v. Bic Corp., 4169 CRB-3-00-1 (April 30, 2001); Pontoriero v. Sanzo Concrete Construction, Inc., 3492 CRB-4-96-12 (March 6, 1998). The trier must determine as a factual matter whether a claimant has proven a loss of earning capacity and whether a claimant has met the employability restrictions of § 31-308a. Vuoso v. Custom Gunite Pools, 13 Conn. Workers' Comp.Rev.Op. 50, 1581 CRB-7-92-12 (Dec. 7, 1994). "If the statutory factors are considered by the trial commissioner in making his . . . decision, and the claimant's earning capacity is his focus, this board cannot tamper with the trier of fact's judgment." Pontoriero, supra, quoting Kulhawik v. Ace Beauty Supply, 15 Conn. Workers' Comp.Rev.Op. 159, 160, 2116 CRB-2-94-8 (Feb. 1, 1996). The trial commissioner, of course, has the sole authority to decide whether the testimony of a given witness is credible, and we may not second-guess such a ruling on review. Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001).
Here, the trial commissioner clearly considered the factors mentioned by § 31-308a: the claimant's age, education level, experience, the nature of her injury, and the availability of work for someone in her position. He permissibly relied upon the testimony of David Soja, the vocational rehabilitation specialist, who opined that the claimant was still able to perform her job at Wesleyan at the time she took her retirement; January 30, 2001 Transcript, p. 9; and that the claimant, given her ability to engage in horseback riding and to do a lot of walking, could work in either a sedentary or a light-physical-demand position. Id. Given her skills and education, Soja thought that she could compete in Florida at a wage earning capacity averaging $14 per hour, or $559 per week, encompassing a wide variety of job opportunities including receptionist, insurance claims adjuster, human service worker, and police department dispatcher. Id., 12. "[T]he jobs are considered sedentary to light and all of the positions involved involve the option to get up and move about and have a flexible day-to-day work activity. . . . She's in a professional setting where certain liberties are allowed for professionals who work in those settings." Id. Soja also noted that the claimant would be able to earn an average of $662 per week in the Connecticut job market.
The evidence in the record adequately supports the trier's finding that the claimant did not have a reduced earning capacity because of her 1992 injury within the meaning of § 31-308a, as she would have still been able to perform her prior job had she chosen not to retire. Accordingly, the trier did not abuse his discretion in denying her an award of § 31-308a additional permanent partial disability benefits. We therefore have no ground upon which to disturb the trial commissioner's decision.Smith, supra.
The trial commissioner's decision is hereby affirmed.
Commissioners George A. Waldron and Ernie R. Walker concur.
CERTIFICATION
THIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 3rd of April 2002 to the following parties:
ROSEMARY McDANIEL
DOUGLAS L. DRAYTON, ESQ. 7099 3400 0008 5541 0207 LUCAS STRUNK, ESQ.
WESLEYAN UNIVERSITY
BERNARD POLINER, ESQ. 7099 3400 0008 5541 0191
Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers' Compensation Commission