Opinion
CASE NO. 1825 CRB-2-93-8
APRIL 27, 1995
The claimant was represented by Mark W. Oberlatz, Esq., O'Brien, Shafner, Stuart, Kelly Morris, P.C.
The respondents were represented by Booth M. Kelly, Jr., Esq., Murphy Beane.
This Petition for Review from the August 11, 1993 Finding and Award of the Commissioner acting for the Second District was heard August 26, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.
OPINION
The claimant has petitioned for review from the August 11, 1993 Finding and Award of the Commissioner for the Second District. He argues on appeal that the commissioner improperly ruled that the claimant was not entitled to further § 31-308a C.G.S. benefits unless he could show a substantial change in his condition. We affirm the trial commissioner's decision.
The claimant sustained a compensable carpal tunnel injury to both hands while employed as an outside machinist with the respondent Electric Boat in June of 1988. Surgery was performed, and the claimant was referred to Dr. Browning, who rated each of the claimant's hands as being 7.5 percent permanently partially disabled. Dr. Browning opined that the claimant had restrictions and warned him against the future use of pneumatic tools, which led the claimant to leave his employment with Electric Boat and to take a job as a machinist at American Felt. The claimant earns less there than he, would have had he remained at Electric Boat, and sought § 31-308a discretionary benefits as a result of his claimed wage loss.
The commissioner found that the claimant had established his entitlement to § 31-308a benefits based upon his work restrictions and his current diminished earning capacity. He awarded the claimant benefits for his average weekly wage loss from April 3, 1992 through December 31, 1992, with additional benefits subject to a substantial change in the claimant's medical condition. The claimant has appealed, claiming that there is no legal basis for the requirement that the claimant show a change in his condition before further benefits may be awarded. The respondents reply that the commissioner has discretion to set the duration of benefits under § 31-308a. We agree.
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."
The language of the statute is self-explanatory. The commissioner has discretion to determine the duration of an award based upon factors such as the employee's age, training, education, marketability, and the severity of his injury. Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers' Comp. Rev. Op. 177, 180, 876 CRD-6-89-6 (Aug. 13, 1991). The commissioner's conclusions regarding those factors are pure factual determinations allocated to the commissioner and considered discretionary. Id. Thus, the question before this Board is whether the commissioner abused his discretion in limiting the duration of the claimant's award.
The claimant was found to have established his entitlement to § 31-308a benefits based on his average weekly wage loss. The commissioner noted that the claimant did not have a high school education, that he was diagnosed with a 7.5 percent permanent partial disability of each hand, that he could no longer operate pneumatic tools, and that the claimant had "made a responsible effort to replace some of his lost wages by obtaining his current job at American Felt." The commissioner also noted that the claimant's surgeon had placed no restriction on the claimant's use of his hands. As it is clear from these findings that the commissioner considered many of the factors relevant to the claimant's eligibility for benefits, we do not believe that he improperly exercised his discretion in this case. See Hicks v. State of Connecticut, 6 Conn. Workers' Comp. Rev. Op. 111, 115, 429 CRD-5-85 (Feb. 23, 1989), affirmed, 21 Conn. App. 464 (1990), cert. denied, 216 Conn. 804 (1990).
The commissioner was in a better position than this Board to weigh the evidence in determining the appropriate duration of the claimant's award, and it was his prerogative to do so. Id. There is no reason why he could not condition further benefits on a change in the claimant's condition; indeed, the commissioner could have declined to award any § 31-308a benefits at all. As a general rule, absent consideration of improper factors in decisionmaking, which there is no evidence of here, this Board is extremely unlikely to find that a commissioner has abused his or her discretion in awarding or denying § 31-308a benefits. A commissioner's discretion may not be unfettered, but it certainly encompasses the decision made in this case. See Hicks, supra.
The trial commissioner is affirmed.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.