CASE NO. 679 CRD-5-88-1Workers’ Compensation Commission
JUNE 1, 1989

The claimant was represented by Edward T. Dodd, Esq.

The respondents were represented by Robert E. Beach, Esq. and John P. Clarkson, Esq., Naab Danforth.

A Petition for Review from the December 22, 1987 Finding and Award of the Commissioner-at-Large acting for the Fifth District was heard March 31, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Michael S. Sherman and A. Thomas White, Jr. This matter was also the subject of an earlier March 10, 1983 Finding and Award aff’d 215-CRD-5-83, 3 Comp. Rev. Op. 23 (1/17/86).



Respondents have appealed the December 22, 1987 Finding and Award granting claimant Sec. 31-308(a)[1] benefits. They contest the sum determined by the commissioner as “the amount he (claimant) is able to earn after such injury” The Commissioner found that sum to be “$300.00 per week through 1984-1985 and $350.00 a week from 1985-1986 to date.” (Finding #9)

No finding was made as to claimant’s actual earnings. However, the evidence in the record indicates he worked part-time from September, 1981 to September, 1982 earning $72.00 per week From September, 1982 to September, 1983 he testified to earning $80.00 per week. (2/11/87 TR, 5-6). Claimant’s income tax forms received in evidence show his earnings from 1983 through 1986. However, in none of the years listed did he earn as much as $300.00 a week.

Thus, the Commissioner’s conclusions concerning the weekly amounts claimant was able to earn for all the period were higher than the actual earnings received. Nonetheless, respondents argue that the Commissioner’s amounts were not high enough. Their contention is that claimant, a college graduate with a master’s degree, had a much greater earning potential. They support this argument by citing evidence that claimant had declined assistance in seeking better paying work within the medically imposed restrictions.

As claimant has not been rated for a possible permanent partial disability, any partial wage loss benefit payable to him must be based on the provisions of Section 31-308(a), C.G.S., as distinguished from Section 31-308a, C.G.S., the latter dealing with additional benefits after payment of specific award for permanent partial disability, not before. The parties so stipulated at oral argument.

It may very well be that claimant was able to earn more than he actually did during the five or six years on which the commissioner ruled, but there is no finding of subordinate facts which permits us as an appellate body to determine whether there was evidence to justify the commissioner’s conclusion in this regard. Respondents’ argument is that if claimant had followed the advice of Mr. Hank Lerner, the respondent’s vocational rehabilitation expert, Zipoli might have been able to earn as much as $25,000-$30,000 per year.

Claimant’s response, given the fragility of his psyche caused by the work stress, would undoubtedly be that he could not undertake such adventurous employment opportunities without risk and further that the amount he actually earned was all he “was able to earn.”

The trial commissioner was free to reject either argument as he did when he found the probable earning capacity to be $300.00 to $350.00 per week. However, his finding did not show the evidence credited to justify the conclusions reached. At the least, the commissioner must find what the actual weekly earnings were during each year of the period. He must also show why Mr. Lerner’s projections as to earning capacity are not sufficiently credible, and why a $300.00 to $350.00 weekly earning capacity is.

The matter is remanded for further proceedings consistent herewith. The Commission Chairman John Arcudi and Commissioner A. Thomas White, Jr. concur.

[1] The relevant portions are: Sec. 31-308 Compensation for Partial Incapacity (a) If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent 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 amount he is able to earn after such injury.