CASE NO. 958 CRD-5-89-12Workers’ Compensation Commission
JUNE 5, 1991
The claimant was represented by Edward T. Dodd, Jr., Esq.
The respondents was represented by Michael J. Lanoue, Esq., Assistant Attorney General.
This Petition for Review from the December 4, 1989 Finding and Dismissal of the Commissioner for the Fifth District was heard November 30, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners George Waldron and Donald Doyle.
JOHN ARCUDI, CHAIRMAN.
Claimant has appealed the Fifth District’s dismissal of the claim that his discharge by his employer was a discriminatory act in violation of Sec. 31-290a
In this type of matter the finding of the trial commissioner are largely dependent upon the weight and credibility to be accorded the evidence presented below, and we will not disturb his findings of a trial commissioner when they are so dependent. Wheat v. Red Star Express lines, 156 Conn. 245 (1968).
The trial commissioner found that the claimant had a history of unauthorized absences and that the respondent had a policy of progressive discipline for such infractions. Claimant in 1984 had received a total of nine days of suspension for unauthorized absences. Claimant had sustained a compensable knee injury on April 27, 1983. In December, 1984 he advised his superiors that he was unable to work. However, claimant failed to provide documentation to the respondent confirming the out of work status due to the knee injury.
Sec. 31-290a (a) provides that “No employer . . . shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.” (emphasis ours) Recently our Appellate Court considered Sec. 31-290a and held, inter, “General Statutes Sec. 31-290a . . . does not require an employer to retain an employee unable to perform his or her work simply because that inability resulted from a work related injury or illness.”, Chiaia v. Pepperidge Farm, Inc., 24 Conn. App. 362, 366 (1991). Further, Chiaia relied on the earlier Supreme court case, Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40 (1990) which delineated plaintiff’s burden of proof under Sec. 31-290a:
In order to establish a prima facie case under General Statutes Sec. 31-290a, the plaintiff bears the initial burden of demonstrating discrimination by a preponderance of the evidence. Ford v. Blue Cross Blue Shield of Connecticut, Inc., supra, 53. The plaintiff must present some evidence from which a trier of fact could infer that the employer discharged or discriminated against the employee because he or she had exercised his or her rights under the Workers’ Compensation Act. Id., 53-54. Without some proof of an improper motive, a plaintiff’s case must fail. See id.
Chiaia, supra, at 366.
In this instance the plaintiff failed to carry his burden of proof. There was evidence presented below from which the trial commissioner could conclude that the dismissal was not in retaliation for claimant’s exercising his Workers’ Compensation rights. The evidence of claimant’s pattern of unauthorized absences (even excluding the temporary total disability period to which claimant objects) supports the trial commissioner’s finding that the dismissal was not violative of Sec. 31-290a.
We therefore affirm the decision of the Fifth District Commissioner and dismiss the appeal.
Commissioner George Waldron and Donald Doyle concur.
(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employer has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
(b) Any employee who is so discharged or discriminated against may . . . (2) file a complaint with the chairman of the workers’ compensation commissioner alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint, provided any commissioner who has previously rendered any decision may award the employee the reinstatement of his previous benefits to which he other wise would have been eligible if he had not been discriminated against or discharged. Any reasonable attorney’s fees. Any party aggrieved by the decision of the commissioner may appeal the decision to the appellate court.