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Vasilescu v. Consolidated Freightways

CASE NO. 2225 CRB-7-94-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 18, 1996

RICHARD VASILESCU

CLAIMANT-APPELLANT

v.

CONSOLIDATED FREIGHTWAYS

EMPLOYER

and

OLD REPUBLIC INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Ross Lessack, Esq., Dodd, Lessack, Ranando & Dalton, P.C. 700 West Johnson Ave., Cheshire, CT 06410.

The respondents were represented by Dominick Statile, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-1087.

The Second Injury Fund was not represented at oral argument. Notice sent to Richard Hine, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 25, 1994 Finding and Award of the Commissioner acting for the Seventh District was heard January 26, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 25, 1994 Finding and Award of the Commissioner acting for the Seventh District. He argues on appeal that the commissioner erroneously failed to conclude that his psychiatric condition was causally related to his compensable work injury. We reverse the trial commissioner’s decision, and remand for further findings.

The claimant suffered compensable injuries to his back, neck and shoulder as a result of an August 21, 1986 motor vehicle accident. The injuries were accepted by a voluntary agreement approved on May 25, 1989. There was also an agreement to transfer the back injury to the Second Injury Fund effective November 5, 1988. The issue before the trial commissioner was whether the claimant’s psychiatric claims attached to either or both the neck and back injuries.

From the claimant’s testimony, the commissioner found that between 1986 and 1989, several doctors rated the claimant as having between a five and seven percent permanent partial disability of the neck. maximum medical improvement occurred in 1987 for the cervical injury. The claimant also had been treating with Dr. Sheiman for his back through 1989, and complained that back pain forced him to stop attending an architectural design course in 1987. His back pain has been ongoing since the injury. The claimant again began complaining of neck pain in July 1992, although he enrolled in an electronics course beginning two months later. At the time of the formal hearing, the claimant was receiving subsistence due to his participation in programs run by the Division of Workers’ Rehabilitation and his open workers’ compensation claims.

The commissioner found that the medical evidence indicated that the claimant did not complain of neck pain from the 1987 maximum medical improvement date until 1992. After unsuccessful back fusion surgery on October 25, 1989, the claimant began psychiatric treatment, blaming his depression on the failure of the surgery and his consequent inability to work and support his family. The commissioner specifically noted the neck condition was not mentioned by Dr. Caffrey, the claimant’s psychiatrist, during his period of treatment, and that there was no evidence the neck condition contributed to the claimant’s inability to work.

The commissioner concluded that the claimant’s neck problems beginning in 1992 were not related to the 1986 compensable injury or his current psychiatric condition. She further found that the claimant’s demeanor and testimony regarding his attempted rehabilitation “fail to establish a creditable psychiatric illness attributable to any on the job injury.” She noted that the psychiatric condition may be aggravated by an ongoing back injury, and stated that his alleged psychiatric condition may be transferred with the back claim to the Second Injury Fund “if a medical determination by the Commissioner’s Examiner” so finds. She then ordered a psychiatric evaluation pursuant to § 31-305 C.G.S. [now § 31-294f C.G.S.] to determine compensability of the psychiatric condition, the extent of disability, and proposed treatment. She also ordered that certain bills for authorized psychiatric treatment be paid, and that further proceedings be held to determine what, if any, further benefits are owing the claimant. The claimant has appealed from that decision.

When this board reviews a trial commissioner’s factual findings, we recognize that he or she is entitled to find the facts and to determine the weight and credibility of the evidence and testimony presented. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995). The commissioner’s findings can be altered only if they contain facts found without evidence or fail to include undisputed material facts. Id., citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994). Similarly, the conclusions drawn by the commissioner from the facts must stand unless they result from an incorrect application of the law to the facts or from an illegal or unreasonable inference drawn from the facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Rogers v. Laidlaw Transit, 2154 CRB-3-94-9 (decided June 24, 1996).

The commissioner ’s findings in this case regarding the claimant’s neck injury are not in dispute, and are reasonable conclusions based on the evidence. The problem here arises in regard to the back injury. The commissioner did not make a definitive ruling either way as to the relation of the back injury to the claimant’s psychiatric treatment. She instead found that the claimant’s testimony failed to establish a link between his compensable back injury and his psychiatric condition, stating that “what remains unclear is whether the medical evidence of psychiatric illness is causally related to any work injury or to the everyday exigencies of survival and family support when an individual has not the skills, knowledge and abilities to make work transition.” (Emphasis in original). After requesting a Commissioner’s psychiatric examination to obtain further evidence, she then ordered that “all outstanding medical bills for authorized psychiatric treatment from October, 1990 where a medical report is tendered that connects complaints with the accepted back injury up to the date of November 15, 1993 be paid.”

On the face of the Finding and Award alone, it is plain that the order regarding payment of bills for psychiatric treatment is not consistent with the commissioner’s opinion that the link between said treatment and the claimant’s back injury was unclear. Thus, a remand would be necessary on those grounds alone. Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 196, 1721 CRB-1-93-5 (March 22, 1995). However, the medical reports of the two treating physicians, Drs. Caffrey (Claimant’s Exhibit 18) and Gray (Exhibit 21), both make an unambiguous connection between the claimant’s back injury and his need for psychiatric treatment. Additionally, the independent psychiatric examinations performed by Drs. Borden (Exhibit 11) and Friere (Exhibit 12) both produced reports that described the back injury as a major cause of the claimant’s depression and need for psychiatric treatment. No contrary medical evidence was produced. It is thus hard to tell what additional evidence the commissioner believed necessary. Although the factfinder is never required to find a medical report credible, and can request a medical examination when she reasonably believes it is needed, we are unclear as to what information the commissioner felt she was lacking in this case.

The trial commissioner’s decision is reversed, and the case is remanded for a continuation of the formal hearing.

Commissioners George A. Waldron and Michael S. Miles concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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