CASE NO. 138 CRD-6-82Workers’ Compensation Commission
JANUARY 14, 1985
The claimant was represented by Harry D. Weller, Esq.
The Respondent was represented by Jane Comerford, Esq., Assistant Attorney General.
This Petition for Review from the March 12, 1982 Finding and Award of the Commissioner for the Sixth District was argued on March 25, 1983 and December 9, 1983 before a Compensation Review Panel consisting of Commissioners Rhoda Loeb, A. Paul Berte and Darius J. Spain.
FINDING AND AWARD
Paragraphs 1 through 13 of the Sixth District Commissioner are affirmed and adopted as paragraphs 1 through 13 of this Division’s Finding.
Paragraph 14 of the trial Commissioner’s Finding is deleted.
Paragraphs 15, 16, 17, 18 and 19 are affirmed and adopted as paragraphs 14, 15, 16, 17 and 18 of this Division’s Finding.
The Commissioner’s Award, paragraphs A through G, is adopted as the Award of the CRD.
OPINION
RHODA LOEB, Commissioner.
The Commissioner below issued a Finding and Award for the claimant. Respondent State of Connecticut appealed and the claimant filed a cross-appeal. Claimant’s cross appeal was dismissed by this Division, 138 CRD-6-82, September 19, 1983.
The jurisdictional issue of the cross appeal having been decided, we now turn to decide the issue raised by the Respondent: whether claimant in the aforesaid Finding and Award was correctly awarded temporary partial benefits commencing April 23, 1980 to September 5, 1980 under Connecticut General Statutes 31-308(a) with such benefits continuing until claimant’s situation changed. The respondent specifically disputes the awarding of benefits under 31-308(a) from September 5, 1980 and continuing thereafter.
In effect, respondent is asking that the Finding and Award be corrected, but it is to be pointed out that respondent failed to make any Motion to Correct the Finding and Award. Although the Motion to Correct the Finding and Award was not made and that failure alone could sustain the appellee herein, it is clear that the Commissioner had sufficient evidence before him, in that he weighed and considered the evidence, to sustain the Finding and Award. This Review Division cannot change the findings of the trier unless they were found without evidence or his conclusions were unreasonably reached. The determination is a factual one in the province of the trier of fact, the trial Commissioner, and we cannot substitute our conclusions for his, Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Reiske v. State of Connecticut, 128 CRD-4-82, 2 Conn. Workers’ Comp. Rev. OP. 84, 85 (1984), Pike v. Glass Container Corp., 9 CRD-2-80, 1 Conn. Workers’ Comp. Rev. Op. 46, 47 (1981).
The question herein is whether claimant by enrolling in a full time college course September 5, 1980 removed herself from the Job market and thus is not entitled to temporary partial benefits under 31-308(a). Findings by the Commissioner below were made on the basis of medical testimony that claimant should not return to her usual and customary work and should be employed only “in non-patient care situations.” On September 5, 1980, respondent employer “no longer had part time or selected work available for claimant and thereby terminated her employment.” It was further found by the Commissioner that claimant could not find work through the agencies of the Connecticut Labor Department.
There was ample testimony for the Commissioner to conclude that claimant’s partial incapacity was sufficiently disabling and that her Job skills needed to be improved in another direction, namely where she would not be giving direct patient care and contact. Although claimant took herself out of the job market by attending college to enhance her work skills, her diminished earning capacity continued and she was entitled to continuing benefits as found by the Commissioner.
The awarding of said benefits under this section is within the proper exercise of a Commissioner’s discretion. Da Silva v. Administrator, 175 Conn. 562 (1978), Reiske vs. State of Connecticut, supra 85, 86. The decision below is affirmed and the appeal is dismissed.
Commissioners Berte and Spain concur in this opinion.