Brassard v. The Erectors, LLC
When deciding whether a particular claimant has demonstrated temporary total disability under the 1949 Supreme Court decision in Osterlund v. State, it is expected that a trier will look beyond the medical evidence and examine other factors which may affect the claimant’s employability; but, the successful prosecution of an Osterlund claim requires a showing of "due diligence" in the claimant’s efforts to secure new employment. In Aug. 2006, Paul Brassard suffered a back injury employed as an iron worker by The Erectors, LLC. He was treated primarily with high levels of narcotics. The parties stipulated to a 15 percent permanent partial back disability. No voluntary agreement for permanency was approved. The trier determined that the claimant reached maximum medical improvement in Oct. 2008 but, he remained totally incapacitated until June 21, 2010, when the claimant was found capable of light work on a full-time basis. The claimant appealed, asserting ample medical evidence demonstrated his temporary total disability under C.G.S. §31-307, secondary to low back pain, chronic debilitating testicular pain, and chronic opiate pain medication dependency. He sought to be reclassified as permanently totally disabled. The Compensation Review Board upheld the commissioner’s decision. As explained in the 2002 Appellate Court case of D’Amico v. Department of Correction, a "plaintiff is entitled to total disability benefits under [C.G.S.] §31-307(a) only if he can prove that he has a ‘total incapacity to work.’ " Brassard’s injuries did not fall under the enumerated injuries in C.G.S. §31-307(c), presumptively conferring permanent total disability. If medical evidence suggests a work capacity, a claimant can still establish eligibility for temporary total disability benefits via an "Osterlund" claim. Numerous medical opinions attested to Brassard’s lack of work capacity. The commissioner relied on a medical opinion of a light duty capacity and a vocational assessment of jobs within the claimant’s vocational and physical capacity. The commissioner found the claimant lacking in credibility and that he made no significant effort to find alternative employment. The board found no error in the claim’s dismissal given the paucity of evidence from which it reasonably could be inferred that the claimant sought employment with the diligence required under Osterlund.