Opinion
CASE NO. 1441 CRB-4-92-6
MARCH 15, 1994
The claimant appeared pro se.
The respondents were represented by Timothy D. Ward, Esq., Law Offices of Rosenbaum Brennan.
This Petition for Review from the June 16, 1992 Finding and Dismissal of the Commissioner At Large acting for the Fourth District was heard April 30, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners James Metro and Angelo L. dos Santos.
OPINION
The claimant has petitioned for review from the June 16, 1992 Finding and Dismissal of the Commissioner at Large acting for the Fourth District. The trial commissioner denied the claimant's claim for additional benefits pursuant to General Statutes Sec. 31-308a and his claim for payment of a weight loss program. We affirm the trial commissioner.
"[General statutes (Rev. to 1983)] 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 of earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner."
The claimant sustained a compensable low back injury on March 7, 1984 for which a voluntary agreement was issued. The claimant received permanent partial disability for said injury from March 28, 1988, the date of maximum medical improvement, through September 23, 1988, for a 5% impairment of the lumbosacral spine. The respondent then agreed to pay Sec. 31-308a benefits from September 24, 1988 to February 27, 1989, during which time the claimant asserts approximately six weeks of total disability. The issues before the commissioner were (1) the claimant's request for Sec. 31-308a benefits after February 1989 and (2) payment for a weight loss program. After the commissioner denied both claims, this appeal followed.
The claimant asserts that he should have been able to proceed on his claim, pursuant to General Statutes Sec. 31-313, that the employer failed to offer him available suitable work. The formal hearing, however, was limited to the Sec. 31-308a and the weight loss program issues. See Transcript of October 28, 1991, pp. 2-3, 15-17.
On April 5, 1993, a Compensation Review Board panel denied the claimant's Request To Submit Additional Evidence dated June 29, 1992, based on the claimant's failure to satisfy the requirements of Administrative Regulation Sec. 31-301-9.
I
An award of additional benefits pursuant to Sec. 31-308a is discretionary. Although the commissioner's discretion is not unfettered, it must stand unless shown to have been abused. Hicks v. State of Connecticut, 6 Conn. Workers' Comp. Rev. Op. 111, 115, 429 CRD-5-85 (1989), no error, 21 Conn. App. 464, cert. denied, 216 Conn. 804 (1990). Section 31-308a "authorizes the commissioner to award additional benefits if the work-related injury adversely affects the claimant's earning power after an award for specific indemnity benefits is exhausted." J. Asselin, The Connecticut Workers' Compensation Practice Manual, p. 166. Thus, it is the claimant's earning capacity which is the proper focus of inquiry in a Sec. 31-308a claim. See Ferrara v. Clifton Wright Hat Co., 125 Conn. 140 (1939).
Here, the commissioner made specific findings concerning the claimant's age, education and experience, the nature and extent of his injury and the availability of work within the claimant's medical restrictions, in order to determine his earning capacity. The claimant attacks the commissioner's conclusion in this regard.
The claimant first argues that the respondent-employer failed to show that work was available within the claimant's medical restrictions. This argument is nothing more than an attempt to have us retry the facts. The parties presented conflicting evidence regarding this issue. The factual determination reached by the commissioner was therefore dependent upon the weight and credibility accorded the evidence. We will not disturb conclusions which are so based. Neal v. UTC/Pratt Whitney, 10 Conn. Workers' Comp. Rev. Op. 163, 1199 CRD-8-91-3 (1992).
The claimant next argues that the second shift position offered to him was not suitable employment as it conflicted with his religious obligation, as a pastor in his church, to conduct evening services. The claimant's argument, is misguided. The issue properly before the commissioner was whether the claimant's earning capacity continued to be impaired by reason of his compensable injury, not whether the employer offered him suitable employment. The specific job offered to the claimant was proper evidence of the type of work the claimant was capable of performing and, hence, his earning capacity.
Because we do not retry the facts, it was within the province of the trial commissioner to resolve disputed factual issues as to whether the compensable injury continued to adversely affect the claimant's earning power. Our appellate review is limited to determining whether there was evidence to support the conclusion reached and whether that conclusion was based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988). Here, the commissioner's conclusion is amply supported by his findings and the evidence of record.
II
The claimant also contends that he was entitled to payment a weight loss program. The evidence showed, and the commissioner found, that while further weight loss might be a benefit to the claimant, it would be palliative. Employers are not responsible for palliative treatment. Quinn v. Poli, 104 Conn. 393 (1926), Mulligan v. N.C.H. Corporation Chemsearch Division, 10 Conn. Workers' Comp. Rev. Op. 131, 1135 CRD-7-90-11 (1992). The determination of whether medical care is reasonable or necessary, that is, in this case whether it is a temporary palliative or a curative remedy, is to be made by the trial commissioner. Bowen v. Stanadyne, 2 Conn. Workers' Comp. Rev. 60, 232 CRD-1-83 (1984). Thus, the commissioner properly denied the claim for such treatment in this case.
We, therefore, affirm the trial commissioner and deny the appeal.
Commissioners James J. Metro and Angelo L. dos Santos concur.