CASE NO. 1572 CRB-2-92-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 17, 1994
GALLAGHER BASSETT SERVICES
The claimant was represented by Mark W. Oberlatz, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., P.O. Drawer 929, Groton, CT 06340.
The respondents were represented by John M. Walsh, Esq., Lynch, Traub, Keefe & Errante, P.O. Box 1612, New Haven, CT 06506.
This Petition for Review from the November 16, 1992, Finding and Award of the Commissioner acting for the Second District was heard December 2, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the November 16, 1992 Finding and Award of the Commissioner acting for the Second District. On appeal, the respondents challenge the commissioner’s findings and conclusion that the claimant was totally disabled beginning in June 1991 and continuing until his condition changes. We affirm the trial commissioner.
The trial commissioner found the following facts. On October 6, 1988, the claimant injured his left knee at work. Compensability of the injury was accepted through a voluntary agreement approved May 9, 1989, in the Second District. Between November 23, 1988, and February, 1991, the claimant had some six surgeries to the left knee. As a result, he missed a great deal of work and received total disability. In February, 1991, he returned to work on light duty status. He suffered a great deal of pain to the knee after returning to work and finally ceased working in June, 1991. At that time, he consulted his treating physician, Dr. William Cambridge, who treated him between June, 1991, and the date of the formal hearing.
The respondents contend that the trial commissioner improperly found the claimant to be totally disabled during the relevant time period. Specifically, the respondents argue that the testimony of the various medical experts unanimously supported, and therefore compelled, a finding that the claimant has a light duty/sedentary work capacity and is not totally disabled. We disagree.
Total incapacity is defined as the inability of the employee because of his injury, to perform his usual work or any other occupation which he might reasonably follow. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 456 (1951). If, because of a compensable injury, an employee’s labor becomes unmarketable, his earning capacity is gone and he is totally incapacitated. Id., 456-57.
The respondents’ claim to the contrary notwithstanding, there was conflicting evidence regarding the claimant’s ability to do light duty/sedentary work. Dr. Cambridge opined that the claimant was totally disabled. Much of the respondents’ claim to the contrary is predicated on a hypothetical question posed to Dr. Cambridge asking whether the claimant could perform a desk job answering telephones in a carpeted work space with a nearby handicapped parking space, all designed to limit the stress placed on the claimant’s knee at the workplace. Dr. Cambridge appears to have indicated that these restrictions would accommodate the claimant’s most obvious physical needs due to the compensable injury. The respondents, however, never produced any evidence that such a job was offered to the claimant or even existed. Furthermore, the usefulness of the response to this hypothetical question is undermined by the commissioner’s finding that the claimant has an eleventh grade education, is 53 years of age and has never performed any desk jobs in his life and the commissioner’s finding that prescription pain medication used by the claimant can cause drowsiness and adversely affect the claimant’s ability to operate a motor vehicle, both of which are supported by the evidence. Thus, even if the respondents were to design a job around the claimant’s physical needs, the evidence relied on by the commissioner raises a serious question as to whether the claimant could perform such work and whether the claimant could even get to such a work site given the side effects of the medicine used to address the pain caused by his compensable injury.
The arbiter of a claimant’s total incapacity is the trial commissioner, and his ruling is dependent on a factual determination. Damelio v. Anaconda, Inc., 11 Conn. Workers’ Comp. Rev. Op. 221, 1363 CRD-5-91-12 (1993); French v. Town of Greenwich, 7 Conn. Workers’ Comp. Rev. Op. 115, 698 CRD-7-88-2 (1989). The factual determination reached below was dependent upon the weight and credibility accorded the evidence. We will not disturb conclusions which are so based. Damelio v. Anaconda Inc., supra; Neal v. UTC/Pratt & Whitney, 10 Conn. Workers’ Comp. Rev. Op. 163, 1199 CRD-8-91-3 (1992).
“Because we do not retry the facts, it was within the province of the trial commissioner to resolve disputed factual issues as to the claimant’s work capacity. Lageux v. Rene Dry Wall Co., 9 Conn. Workers’ Comp. Rev. Op. 177, 876 CRD-6-89-6 (1991); French v. Town of Greenwich, supra. Our appellate review is limited to determining whether there was evidence to support such a conclusion and whether the conclusion was based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In the present case, there was sufficient evidence to sustain the conclusion reached.” Damelio v. Anaconda Inc., supra, 223.
We, therefore, affirm the trial commissioner and deny the appeal.
Additionally, pursuant to Sec. 31-301b, we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.