The 308a Controversy By Ralph J. Monaco, Esq. August 2002

For claimants and respondents, Section 31-308a is a battleground. This section entitled "Additional benefits for partial permanent disability" begins by providing language that excites claimants and their attorneys, and concludes with language in which respondents and their attorneys may take solace. The concluding language was added in P.A. 93-228, § 20, and is the subject of some controversy.

In general, Section 31-308a permits the commissioner to award benefits to the claimant whose earning capacity has been affected adversely by a work-related accident. Prior to 1993, the statute provided that "[t] he duration of such additional compensation shall be determined upon a similar basis by the commissioner." Public Act 93-228, § 20 amended the statute to provide that the duration of such additional compensation shall not "exceed the lessor of (1) the duration of the employee's permanent partial disability benefits or (2) five hundred twenty weeks." These changes apply only to those persons who received injuries after the legislation became effective, and not to those injured previously.1

Section 31-308a permits the commissioner to award benefits, after a specific indemnity award has been exhausted, where a claimant's earning power has been adversely affected by a compensable injury. CANDIDO FIGUEROA CLAIMANT-APPELLANT1997 WL 96918 *2 (CRB). The commissioner is required to consider the "nature and extent of the injury, the training, education and experience of the employee, [and] the availability of work for persons with such physical condition at the employee's age" in determining the duration and amount, if any, of such an award. "As a general rule, absent consideration of improper factors in decision making [the Compensation Review Board (CRB)] will not find that a commissioner has abused his or her discretion in awarding or denying Sec. 31-308a benefits." DWAYNE JOHNSTON CLAIMANT-APPELLEE, 1996 WL 466605

Accordingly, pursuant to Sec. 31-308a the commissioner has discretion to award benefits based on such factors as the claimant's age, training, marketability, education, and the severity of his injury. Richmond v. General Dynamics Corp., 13 Conn. Workers' Comp.Rev.Op. 345, 346, 1825 CRB-2-93-8 (April 27, 1995). As long as the commissioner considers the statutory factors, the commissioner's decision will stand. Kulhawik v. Ace Beauty Supply, 15 Conn. Workers' Comp.Rev.Op. 159, 2116 CRB-2-94-8 (Feb. 1, 1996); Wosnicki v. Meriden Yellow Cab, 12 Conn. Workers' Comp.Rev.Op. 238, 240, 1509 CRB-8-92-9 (March 28, 1994). ANGELO DEGIACOMO, CLAIMANT-APPELLANT, 1998 WL 24890 *2.

Thus, the award of benefits pursuant to Sec. 31-308a is a discretionary award, which may not be reversed absent a commissioner's abuse of discretion. Kulhawik v. Ace Beauty Supply, 15 Conn. Workers' Comp. Rev. Op. 159, 160, 2116 CRB-2-94-8 (Feb. 1, 1996); Richmond v. General Dynamics Corp./Electric Boat Division, 13 Conn. Workers' Comp. Rev. Op. 345, 1825 CRB-2-93-8 (April 27, 1995). DIANE LYONS CLAIMANT-APPELLANT, 1999 WL 414303.

Although benefits under § 31-308a are considered discretionary, the Legislature snatched some of this discretion from the commissioners in the 1993 amendment. The limitation on the duration of discretionary benefits limits the commissioners from awarding a just result in cases that do not fit well into the compensation scheme. In many cases, the ceiling imposed by the 1993 amendment permit the commissioner ample room in which to award sufficient benefits. However, in some cases the nature of the injury and compensation rates prevent claimants from receiving sufficient benefits.

In addition to the statutory factors under Section 31-308a, the commissioner may prudently exercise their discretion by considering other factors such as maximizing earnings capacity and the failure of a claimant to seek work. While these factors are not required by the statute, commissioners have looked to these factors in analysing the discretionary award.

One such non-statutory factor is the issue of maximizing earnings potential. Although a claimant is not required to introduce evidence that he has "maximized" his earning potential in order to establish an earning capacity in a claim for Sec. 31-308a benefits, Genovesi v. Choice Designs, Inc., 13 Conn. Workers' Comp. Rev. Op. 218, 220, 1745 CRB-5-93-6 (April 12, 1995), the trier may consider whether a claimant has attempted to realize his earning potential. In Johnston v. Thames Permacrete Corp., 15 Conn. Workers' Comp. Rev. Op. 402, 2278 CRB-2-95-2 (Aug. 16, 1996), a claimant was awarded Sec. 31-308a benefits after the trier noted his strong work ethic and his "laudable efforts to maximize his earning capacity." The claimant's failure to look for higher-paying jobs did not prevent the trier from basing his earning capacity on the jobs he actually held. Id., 405. This case demonstrated the importance of allowing the commissioners to consider numerous factors in awarding discretionary benefits.

In addition, the Johnson case is an example of a commissioner using the non-statutory factor of maximizing earnings potential to award benefits to a deserving claimant. This non-statutory factor has also been used as a shield to awarding benefits. In another case the commissioner found that the claimant can do more than perform a part-time bus driving job, and noted the claimant has not attempted to maximize his earning capacity by searching for full-time employment at a higher rate of pay. The commissioner simply found another way to say that the claimant did not make much of an effort to find suitable employment. She was thus unable to determine his true earning capacity, and permissibly exercised her discretion to deny further Sec. 31-308a benefits. In upholding this decision the CRB found that "[t] his is similar to a finding that the claimant has failed to perform sufficient job searches to establish that he is unable to earn the same wages as an employee currently working in the position the claimant held before becoming injured. Such a finding is often integral to a Sec. 31-308a claim." GUISEPPE PONTORIERO CLAIMANT-APPELLANT, 1998 WL 100236 *3 (citations omitted).

Another non-statutory factors often considered by the commissioners is the claimants job search or lack thereof. "The failure of a claimant to look for work or accept offered employment has often been cited as a reason to deny benefits under Sec. 31-308a. However, the statute does not specifically require the claimant to seek work, and a job search is not the only evidentiary means by which a commissioner may determine that a claimant qualifies for a discretionary award of benefits." Bowman v. Jack's Auto Sales, 13 Conn. Workers' Comp. Rev. Op. 192, 195, 1721 CRB-1-93-5 (March 22, 1995) (internal citations omitted); see also Goncalves v. Cornwall & Patterson, 10 Conn. Workers' Comp. Rev. Op. 43, 45, 1111 CRD-4-90-9 (Jan. 28, 1992). THOMAS MEROLA CLAIMANT-APPELLEE, 1997 WL 671581. This non-statutory factor also has been used to award a just result to the deserving claimant, and deny discretionary benefits to the undeserving claimant.

In Wrighten v. Burns International Security, 13 Conn. Workers' Comp. Rev. Op. 173, 176, 1659 CRB-2-93-2 (March 10, 1995).(pre 93 injury), the commissioners awarded the claimant discretionary benefits despite finding that the claimant turned down a job that he was capable of performing by not coming to work.. The CRB reversed the trial commissioner's award of 31-308a benefits because of case precedent that provides that benefits under 31-308a are not warranted "if the claimant was capable of gainful employment but simply chose not to pursue it." Vuoso v. Custom Gunite Pools, 13 Conn. Workers' Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994).

In another case, the trial commissioner awarded benefits pursuant to 31-308a. The trial commissioner found that the claimant was capable of light duty work and also found that the employer offered the claimant light duty employment within his treating physician's restrictions. The CRB reversed the award of Sec. 31-308a benefits, finding that it was an abuse of discretion for the trial commissioner to award the claimant any benefits given the fact that the claimant was capable of gainful employment but simply chose not to pursue it. MICHAEL HIGBIE CLAIMANT-APPELLEE (pre 93 injury), 1996 WL 494776 *2. citing See Wrighten, supra; Vuoso, supra.

The commissioner's discretion is also limited to the facts in the record. An award of Section 31-308a benefits must be supported by the facts. For example, the commissioner cannot award discretionary benefits where the claimants future condition is unknown. "[A] commissioner is only empowered to decide how much compensation is appropriate given the condition of the claimant at the time of the proceedings." RICHARD PERRI CLAIMANT-APPELLANT, 1997 WL 352383.

Thus, the CRB has not permitted unfettered discretion. Another example of the CRB placing limits on the Commissioners' discretion is Stefenski. MICHAEL STEFENSKI CLAIMANT-APPELLEE, 1997 WL 8570 *3. In that case the CRB set aside the commissioner's award of 31-308a benefits because of insufficient findings. First, the CRB found that the findings do not reach a clear conclusion as to the cause or degree of the claimant's current disability. Second, the actual extent of the claimant's disability as it affects his earning capacity was not properly explained in the findings. Because of these deficiencies in the findings, the case was remanded for further proceedings.

The 1993 amendment to Section 31-308a reflects the Legislature's belief that it should further limit commissioners' discretion, in addition to the fact that the commissioner must consider the statutory factors and the fact that the CRB acts on a check and balance on the discretion of the commissioners. While the limits imposed by the 1993 permit ample room within which many claimants may be adequately compensated, they handicap commissioners and claimants' attorneys from securing fair and just compensation for claimants who do not fit neatly into the compensation scheme. For example, take a claimant who speaks very little English, has minimal education, and only has work experience as a carpenter, earning a respectable wage at the time of injury. If this person sustains a substantial injury to his or her master hand requiring the constant use of a wrist brace, and is given a light duty return to work, this person may not be employable. Few employers will want employ this person in any job. Assuming the person can find employment, the jobs available will be very low paying jobs. Some may argue that this person may be better off if they were totally disabled. In reality they are. The limitations imposed by the 1993 amendment handicap the commissioner and the claimant's attorney from securing a fair and just result for this person.

The statutory and non-statutory factors effectively set limits on the commissioner's discretion under Section 31-308a. In addition, the CRB acts as an additional limit with powers to reverse a discretionary award for abuse of discretion. This is a much higher level of scrutiny that the "shock the conscience" standard used to review civil awards in Superior Court.2 Given this higher level of scrutiny, along with the required statutory factors and self-imposed non-statutory factors, the one-size-fits-all scheme of the 1993 amendment has caused, and warrants, controversy.