CASE NO. 128-CRD-4-82Workers’ Compensation Commission
JULY 27, 1984
The Claimant-Appellee was represented by Nancy A. Donahue, Esq.
The Respondent-Appellant was represented by Robert G. Girard, Assistant Attorney General.
This Petition for Review from the January 26, 1982 Finding and Award of the Commissioner for the Fourth District was argued February 25, 1983 before a Compensation Review Division Panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte and Rhoda Loeb.
FINDING AND AWARD
The Finding and Award of the Fourth District Commissioner is affirmed and adopted as the Finding and Award of the Compensation Review Division.
OPINION
JOHN ARCUDI, Chairman.
Claimant suffered an acknowledged compensable injury June 10, 1980 and was paid temporary total disability benefits by the Respondent-Appellant from June 10 to September 2, 1980. At that time the physician released her for work with lifting limitations. She sought to return to work at the state institution, Fairfield Hills Hospital, where she had been a psychiatric nurse aide for seventeen years. But there was no work available for one with her lifting restrictions. The claimant then between September 1, 1980 and March 23, 1981 sought employment as a nurse aide from nine other institutions in the labor market area where she lived. Based on these facts the Commissioner awarded Sec. 31-308 benefits to the claimant for the period in question.
The applicable portions of Sec. 31-308 state:
“(a) If any injury . . . results in partial incapacity, there shall be paid . . . weekly compensation . . . except that when (1) the physician attending an injured employee certifies that such employee is unable to perform his usual work but is able to perform other work, (2) such employee is ready and willing to perform such other work in the same locality and (3) no such other work is available, such employee shall be paid his full weekly compensation subject to the provisions of this section.”
The appellant’s argument relies on the words “usual work” in the statute. Its claim is that by applying to other hospitals for work the claimant was actually seeking “usual work” and not fulfilling the “other work” search requirement of the statute. This argument seems bottomed on a very broad assumption, i.e. that the only nurse aide work existing in hospitals is exactly the same type of work that claimant had been doing at Fairfield Hills Hospital for seventeen years. That proposition hardly seems tenable, and the respondent produced no evidence to substantiate it.
Another part of respondent’s argument is that claimant in order to show a readiness and willingness to perform other work in the same locality needed to search in places of employment other than hospitals. The commissioner ruled that an individual who had seventeen years experience in hospital work showed sufficient readiness and willingness to work if she only sought work at hospitals during the first six or seven months that she was able to work after her injury. That determination is a factual one ordinarily in the province of the trier of fact, the trial commissioner, and we would not substitute our conclusions for his, Adzima v. UAC/Norden Division, 177 Conn. 107 (1979). However, judicial analysis of parallel concepts in unemployment compensation law may furnish us some objective criteria for the exercise of a commissioner’s discretion in this regard.
DaSilva v. Administrator, 175 Conn. 562 (1978) concerned a school teacher who applied to the University of Bridgeport and five municipal school systems in the Westport area for summer employment in 1975. The referee and the employment security board concluded that there were “extremely limited” prospects of obtaining employment as a teacher during the summer months. Therefore they concluded further that the plaintiff had so limited her job search that she was not available for work, and she was not making reasonable efforts to find work. “Although the court may not substitute its own conclusions for those of the referee, the court’s ultimate duty is to decide whether the referee acted unreasonably, arbitrarily or illegally,” DaSilva v. Administrator, supra, 564. The Superior Court nonetheless reversed the referee, and the Supreme Court upheld the Superior Court’s decision and awarded benefits to the plaintiff. The unanimous opinion written by Chief Justice Cotter reviewed the authorities and concluded:
“Under the facts of the present case, therefore, the mere fact that the plaintiff’s prospects of obtaining a summer teaching position were `extremely limited’ did not by itself, negative the existence of a relevant labor market and thus render her unavailable for work or support a conclusion that she was not making reasonable efforts to obtain work.”
DaSilva v. Administrator, supra, 567-568
At another point in the decision the court stated:
“`(t)he mere fact that a person places certain restrictions on the type of work he is willing to accept does not, in itself, make him unavailable for work . . .’ It is only when those restrictions imposed by the claimant reduce the prospects of employment to such an extent that it can no longer reasonably be said a person is genuinely exposed to the labor market that he or she will be deemed unavailable for work.”
DaSilva v. Administrator, supra, 566-567
We think the DaSilva case holding supports the trial commissioner’s exercise of discretion here. Therefore, the decision below is affirmed, and the appeal is dismissed.
Commissioners A. Paul Berte and Rhoda Loeb concur in this opinion.