PENNY GFELLER CLAIMANT-APPELLEE
v.
BIG Y FOODS SELF-INSURED EMPLOYER RESPONDENT-APPELLANT
No. 6322 CRB-2-19-5
Connecticut Workers Compensation
Compensation Review Board Workers Compensation Commission
April 8, 2020
This
Petition for Review from the April 22, 2019 Finding and Award
of Peter C. Mlynarczyk, Commissioner acting for the Second
District, was heard on October 25, 2019 before a Compensation
Review Board panel consisting of Commission Chairman Stephen
M. Morelli and Commissioners Daniel E. Dilzer and David W.
Schoolcraft.
The
claimant was represented by Robert B. Keville, Esq., Suisman,
Shapiro, Wool, Brennan, Gray & Greenberg, P.C.
The
respondent was represented by Nicholas W. Francis, Esq., Law
Office of Jonathan Zajac, L.L.C.
OPINION
STEPHEN M. MORELLI, CHAIRMAN.
The
respondent has petitioned for review from the April 22, 2019
Finding and Award of Peter C. Mlynarczyk, Commissioner acting
for the Second District (commissioner). We find no error and
accordingly affirm the decision of the commissioner.
The
commissioner identified as the issue for analysis whether the
claimant was entitled to temporary partial disability
benefits pursuant to General Statutes § 31-308 (a)
despite the claimant’s employment having been
previously terminated for cause.[1] A formal hearing was held on
February 13, 2019, before Commissioner Thomas J. Mullins in
the Second District Office of the Workers’ Compensation
Commission (commission). The parties thereafter agreed to
have the matter transferred to Commissioner Mlynarczyk for a
decision based on the evidentiary record already before the
commission. Another hearing was held on April 10, 2019, at
which time the parties submitted their proposed findings and
the record was closed.
The
commissioner made the following factual findings which are
pertinent to our review of this matter. The respondent
conceded that on October 13, 2017, the claimant sustained
compensable injuries to her right shoulder and left knee
while at work. The claimant sought treatment for her injuries
at Concentra within a few days of the October 13, 2017
incident, which treatment was paid for by the respondent. On
October 23, 2017, the Concentra treating physician released
the claimant back to work with restrictions on lifting,
pushing and pulling. The respondent accommodated the
restrictions and provided the claimant with her usual number
of hours at full wages. The claimant’s employment was
terminated for cause on March 2, 2018, due to a violation of
company policy unrelated to her work injury. The respondent
did not pay any indemnity benefits from March 3, 2018,
through April 1, 2018, and the claimant is not claiming
indemnity benefits for this period.
On
April 2, 2018, the claimant underwent right shoulder surgery
with Ammar Anbari, M.D., at which time the respondent
commenced payment of temporary total disability benefits. On
May 31, 2018, Anbari released the claimant to light duty with
restrictions. On June 4, 2018, the commission received a
notice to discontinue benefits (“form 36”) as of
May 31, 2018. The respondent contended the claimant was not
eligible for temporary partial disability benefits because
the employer would have accommodated the claimant’s
restrictions had she not been terminated for cause. The form
36 was approved on June 4, 2018, and the claimant
subsequently sought to have the form 36 re-opened and denied.
John
Connolly, the director of the respondent’s store
location in Mystic, Connecticut, testified at the formal
hearing. He stated that but for the claimant’s
termination for cause, the respondent would have accommodated
her post-operative employment restrictions without any loss
of wages. Connolly also testified that because the claimant
had been terminated for cause, she would never be eligible
for future employment with Big Y.
The
claimant submitted work searches for the period of June 3,
2018, through July 21, 2018. The respondent challenged the
credibility of the work searches because they were performed
on-line and the claimant did not attach receipts to the
printouts which would have allowed the respondent to verify
that the searches were actually performed.
The
claimant secured employment at Holmgren Subaru on August 12,
2018, and worked there through September 8, 2018. On...
