ATKINSON v. UNITED ILLUMINATING, NO. 5064 CRB-4-06-3 (4-19-2007)


APRIL 19, 2007

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The claimant was represented by Steven A. Levy, Esq. Friedman, Newman, Levy Sheehan, P.C., One Eliot Place, Fairfield, CT 06824.

The respondents were represented by Neil Ambrose, Esq., Letizia, Ambrose Falls, P.C. One Church Street, New Haven, CT 06510.

This Petition for Review from the February 27, 2006 Finding and Award/Dismissal of the Commissioner acting for the Fourth District was heard September 22, 2006 before a Compensation Review Board panel consisting of the Commission Chairman, John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Stephen B. Delaney.

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This appeal is brought by the claimant based on a single theory: that the trial commissioner improperly failed to award him benefits under § 31-308(c) C.G.S. for certain scars sustained in a compensable injury. Upon review, the claimant’s argument before the trial commissioner was that although the claimant’s scars do not presently impact his ability to be employed and earn, there is a potential the scars would handicap the claimant’s job prospects at some time in the future. We believe the evidence presented to the trial commissioner was inadequate to support an award under this statute; therefore, we uphold the trial commissioner and dismiss the appeal.

The circumstances herein are essentially undisputed. The claimant is a career employee of the respondent who was originally employed as a cable splicer but has been employed since April 2003 in a supervisory capacity. He was injured July 11, 2003 in a flash explosion while inspecting electrical cables at Sikorsky Aircraft. The injuries required about two and half weeks of hospitalization at Bridgeport Hospital’s burn unit and required skin grafts. These injuries left the claimant with permanent scarring to the face, the neck, the back, the right shoulder, right arm, right forearm, flank, and right thigh. At the formal hearing which commenced July 8, 2005, the claimant testified to being in pain since the accident and testified to an inability to perform physical tasks at work. The claimant’s supervisor testified the claimant’s present job duties do not require physical labor and even if management staff had to be reassigned as a result of a labor dispute his physical limitations would be accommodated. The claimant testified that he

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had returned to work, performs all of his job duties and had received regular pay increases since the date of the accident.

The trial commissioner issued her Finding and Award/Dismissal on February 27, 2006 wherein she awarded the claimant 15 weeks of benefits for scarring on his face, head and neck, but denied the claim for additional scarring benefits under § 31-308(c) C.G.S. for scars elsewhere on the claimant’s body. The trial commissioner concluded those scars had not handicapped him in obtaining or continuing work, and therefore the claimant did not meet the statutory eligibility for such an award.

Following the trial commissioner’s denial of a Motion to Correct, the claimant has appealed this decision. Since an appellate body cannot retry the facts presented to the trier, we must ascertain if the trial commissioner’s decision properly applied the law. We note it is always the claimant’s burden to establish entitlement to an award and that his injuries are among those the General Assembly has deemed compensable under Chapter 568. “It is well settled in workers’ compensation cases that the injured employee bears the burden of proof,. . . .”Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447 (2001). “[T]he workers’ compensation system in Connecticut is derived exclusively from statute. . . . A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation.”Cantoni v. Xerox Corp., 251 Conn. 153, 160 (1999), citing Discuillo v.Stone Webster, 242 Conn. 570, 576 (1997).

The relevant statute, § 31-308(c) C.G.S., reads as follows:

In addition to compensation for total or partial incapacity or for a specific loss of a member or use of the function of a member of the body, the commissioner, not earlier than one year from the date of the injury and not later than two years from the date of the injury or the surgery date of the injury, may award compensation

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equal to seventy-five per cent of the average weekly earnings of the injured employee, . . . for any permanent significant disfigurement of, or permanent significant scar on, (A) the face, head or neck, or (B) on any other area of the body which handicaps the employee in obtaining or continuing to work. (Emphasis added).

The claimant believes he should have received a scar award for those parts of his body for which he did not receive an award. The trial commissioner needed to have evidence presented that this scarring was an impediment to the claimant performing his job or obtaining employment to award such benefits. The claimant acknowledges that his case does not include such contemporaneous evidence. Instead, he argues the physical limitations caused by these scars would be an impediment to his future employment prospects. He admits there is no Connecticut precedent supportive of his theory of recovery. He does cite a number of cases from North Carolina where such relief was granted to claimants in that state compensating for the future impact of the injury. The holdings of the North Carolina courts are relevant to this inquiry but are not binding on this panel. Since this is a dispute over the interpretation of a Connecticut statute we are not persuaded precedent from another jurisdiction is authoritative over this issue.

In determining whether a trial commissioner properly applied our statute our scope of inquiry is limited to what the Connecticut legislature intended when it enacted the statute. `”Because of the statutory nature of our workers’ compensation system, policy determinations as to what injuries are compensable and what jurisdictional limitations apply thereto are for the legislature, not the judiciary or the board, to make.’ Stickney v. Sunlight Construction,Inc., 248 Conn. 754, 761 (1999).” Muniz v. Allied Community Resources,Inc., 5025 CRB-5-05-11 (November 1, 2006).

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Our inquiry is further limited to application of the “plain meaning” of the text of the statute in accordance with § 1-2z C.G.S. SeeMuniz, supra, and Esposito v. Simkins Industries, Inc., 5065 CRB-3-06-3
(March 1, 2007).

Our examination of the text of § 31-308(c) C.G.S. and the text of Public Act 93-228, which limited the terms of recovery in scarring awards, is supportive of the trial commissioner’s decision. The claimant must produce evidence at the formal hearing that the scars suffered in the compensable accident have hindered his work performance or impeded a job search or limited an identifiable job opportunity. The claimant’s evidence was based on a subjective belief that the scars would prove an impediment to him at some unspecified point in the future.

In light of the evidentiary record presented by the claimant, we cannot second guess the trial commissioner’s conclusions. Her decision demonstrates that she inferred that the claimant’s evidence was simply too speculative to meet his burden of persuasion. Dengler, supra, 446-447. As the respondents point out, she denied the claimant’s Motion to Correct on this very point.[1] We believe Moran v. SouthernConnecticut State University, 4735 CRB-5-03-10 (September 9, 2004) is instructive. “In order to sustain a legal conclusion of liability, a medical opinion must be definite and positive and not merely speculative or likely.” Id. The claimant’s argument is that at some point in the future he may have difficulty keeping or finding suitable employment. We must defer to the trial commissioner’s assessment of the weight of the evidence presented.[2]

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For those aforementioned reasons, we affirm the trial commissioner’s Finding and Award/Dismissal and dismiss the appeal.

Commissioners Donald H. Doyle, Jr. and Stephen B. Delaney concur in this opinion.

[1] As the claimant’s Motion to Correct sought to interpose their conclusions as to the evidence presented, we find no error in its denial. D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002) cert. denied, 262 Conn. 933 (2003).
[2] The Supreme Court has upheld those provisions of § 31-308(c) C.G.S. that require a claimant to establish a scar not on the head, face or neck impedes one’s employability to obtain an award. Mello v. Big YFoods, Inc., 265 Conn. 21 (2003) the court also held that notwithstanding the limitations on scar awards due to Public Act 93-228, Chapter 568 remained the exclusive remedy for a work-related scar, thus precluding a common law tort claim.

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