CASE NO. 1832 CRB-1-93-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 21, 1995
SENTRY INSURANCE CO.
The claimant was represented by Philip A. Giordano, Esq., 1169 West Main St., Waterbury, CT 06708.
The respondents were represented by Richard S. Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.
This Petition for Review from the August 26, 1993 Finding and Dismissal of the Commissioner acting for the First District was heard August 26, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 26, 1993 Finding and Dismissal of the Commissioner for the First District. He argues on appeal that the commissioner improperly determined that he did not prove that he was totally incapacitated. We affirm the trial commissioner’s decision.
The claimant suffered a compensable back injury on May 14, 1985. He received temporary total disability benefits from January 10, 1986 through January 2, 1989 and permanent partial impairment benefits from that date through January 1, 1991 for a twenty percent impairment of his back. The claimant then sought temporary total disability benefits from that date forward.
The commissioner found that the claimant’s treating physician issued several reports recommending walking, the use of a back brace and weight loss for the claimant. None of the reports indicated that the claimant was disabled. The commissioner also noted that the evidence regarding the claimant’s impairment included ratings as low as five percent “based on subjective complaints.” The report of a vocational specialist stated that it would not be easy or realistic for the claimant to find a job in the existing labor market, but also noted that the claimant had no strong interest in any type of work. The commissioner could not determine if the claimant’s labor was unmarketable because he had not actively sought work since his injury. On the strength of these findings, the commissioner concluded that the claimant had not proven total incapacity and denied his claim. The claimant petitioned for review from that decision.1
The claimant contends on appeal that the evidence overwhelmingly supports his position that he is totally disabled from all employment due to his injury. The claimant cites his inability to communicate in English, his fifth grade education, his background as a farmer in Italy and as a machinist with the respondent employer, and his inability to drive a car or sit down for long periods of time. He also cites the conclusion of a Social Security Administrative Law Judge that the claimant is disabled, and the vocational expert’s opinion that the claimant is not realistically employable in today’s economy. The claimant contends that he is totally disabled under the Workers’ Compensation Act as a matter of law, even though he may have a theoretical work capacity.
Whether a claimant is totally disabled is a factual determination to be made by the trial commissioner. Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 179, 876 CRD-6-89-6 (Aug. 13, 1991). This Board cannot substitute its own conclusions for those of the commissioner, and we review his findings only to determine whether his conclusions were contrary to law or based on impermissible or unreasonable factual inferences. Vuoso v. Custom Gunite Pools, 1581 CRB-7-92-12 (decided Dec. 7, 1994), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
Here, the commissioner was entitled to assess the weight and credibility of the claimant’s testimony, the medical evidence and the vocational expert’s opinion. Corona v. Briganti, 10 Conn. Workers’ Comp. Rev. Op. 113, 115, 1160 CRD-7-91-1 (May 8, 1992). The commissioner was entitled to observe that some of the medical reports diagnosed only a slight permanent partial impairment. It was also permissible for him to note that the vocational expert’s report described the claimant as having no strong interest in any type of work, and that the claimant had not actively searched for employment since his injury.
The vocational expert further declared that it was difficult to find appropriate work for the claimant, as employers feared that his potential for injury was high and his level of productivity would be low. This statement could reasonably be interpreted as implying that the claimant’s lack of motivation to search for work played a significant part in his unemployability. Although the factors cited by the claimant generally support his claim of total disability, they do not mandate a finding that the claimant was unemployable and totally disabled as a matter of law. See Lageux, supra, 181. On the whole, the record provides adequate support for the commissioner’s conclusion that the claimant did not sustain his burden of proof as to his claim for total disability between January 1, 1991 and the time of the formal hearings.
The trial commissioner’s decision is affirmed.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.
1 The claimant also filed a Motion to Submit Additional Evidence requesting the introduction of additional medical reports which he alleges were not available at the time of the formal hearing. These reports, however, concern the claimant’s condition in the late autumn months of 1993. They are irrelevant to the issue that was before the commissioner and is now being appealed, namely, the claimant’s total disability between January 1991 and the last formal hearing on March 4, 1993. Thus, we deny the claimant’s Motion to Submit Additional Evidence. BACK TO TEXT