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Fusciello v. Ronnie Demeo, Inc.

CASE NO. 3406 CRB-08-96-08

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 4, 1998

ILIO FUSCIELLO

CLAIMANT-APPELLANT

v.

RONNIE DEMEO, INC.

EMPLOYER

and

TRAVELERS INSURANCE CO.

INSURER

and

ORION GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Paul Ranando, Esq., and Jack Senich, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., 700 West Johnson Ave., Cheshire, CT 06410.

The respondent employer and Travelers Insurance were represented by Christine Yeomans, Esq., Law Offices of Christine Harrigan, City Place One, 185 Asylum St., Hartford, CT 06103-3402.

The respondent employer and Orion Group (EBI Companies) were represented by Brian Prindle, Esq., 72 Bissell St., Manchester, CT 06040.

This Petition for Review from the August 14, 1996 Finding and Award of the Commissioner acting for the Eighth District was heard April 4, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 14, 1996 Finding and Award of the Commissioner acting for the Eighth District. He argues on appeal that the trier erred by failing to find continuing entitlement to temporary total disability benefits. We affirm the trial commissioner’s decision.

The claimant sustained compensable injuries to his neck and right master arm on two separate occasions in 1983 during the course of his employment with Ronnie Demeo, Inc. He received temporary total disability compensation through November 13, 1987, as per a prior decision of this board. See Fusciello v. Ronnie Demeo, Inc., 12 Conn. Workers’ Comp. Rev. Op. 283, 1535 CRB-6-92-10 (June 7, 1994). There, we concluded that a trier’s finding of total disability beyond November 13, 1987 was not supported by the evidence, and reversed that portion of the award, leaving the claimant to his proof of entitlement after that date.

Further formal hearings were held on that issue, and another decision was released on August 14, 1996. There, the commissioner found that the claimant was born in Italy on November 21, 1937, and had seven years of formal education in that country. He moved to the United States in 1964, and held jobs that required physical labor his whole life, such as masonry work and a stint in a Bristol steel factory. He spoke English when he testified, and was approximately 60% fluent in written English.

The trier noted that the claimant began treating with Dr. D’Angelo in November 1987. The doctor testified that the claimant’s symptoms of arm, shoulder and neck pain have not changed much since then. He thought that the claimant was physically capable of performing jobs that did not require heavy lifting or pulling or a repetitive function. The commissioner cited the testimony of other doctors as well, including Dr. Robinson, who performed a § 31-294f examination at the trier’s request on May 5, 1995. Dr. Robinson opined that the claimant had reached maximum medical improvement and that he was capable of performing light duty work with a 10-pound lifting restriction and a prohibition from repetitive bending. The claimant also testified that he made no attempt to look for employment since leaving Ronnie Demeo, Inc. in 1983. He claims to have a continuing total incapacity to work because he cannot be a mason or steelworker any longer, and cannot reasonably pursue any other occupation.

The trial commissioner concluded that the claimant had failed to establish a claim for total disability after November 13, 1987, as he has sufficient comprehension of the English language to take advantage of his light work capacity. Although Dr. D’Angelo testified that the claimant was unemployable, the commissioner specifically noted that he is not a vocational expert, and that the other doctors’ opinions were more persuasive. The trier awarded the claimant 5% permanent partial disability of the right arm and 15% permanent partial disability of the cervical spine, with payment commencing on November 13, 1987. The claimant has appealed that decision.

Initially, we note that the claimant did not file a Motion to Correct the findings. Thus, we must assume that the facts found are accurate. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). The issue now becomes whether they support the trial commissioner’s legal conclusions. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Jones v. Lillibridge, 16 Conn. Workers’’ Comp. Rev. Op. 143, 3149 CRB-2-95-6 (November 27, 1996).

The claimant argues that under Osterlund v. State, 135 Conn. 498 (1949), “total incapacity to work” means an inability to work at one’s customary calling or any other occupation that he might reasonably follow. The fact that a claimant has a light duty capacity is not conclusive of employability, because he may not realistically be able to find an employer who will hire him. The claimant argues that under the evidence presented here, the trier should have found that this claimant was not employable. We note again that the factual findings in the trier’s decision must be presumed accurate, including his findings based on Dr. Robinson’s testimony that the claimant was capable of light duty work. Further, even if a Motion to Correct had been filed, the trier would still have been entitled to choose among the conflicting medical testimony. See Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997).

The commissioner’s determination that the claimant was not totally disabled in this case was a question of fact. Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 251, 1980 CRB-1-94-3 (August 30, 1995). Although neither § 31-307 nor § 31-308(a) C.G.S. specifically requires a claimant to search for employment in order to demonstrate the unavailability of work for someone with a theoretical light duty capability, this commission often uses that procedure as an evidentiary basis to demonstrate that a claimant qualifies for benefits under § 31-308(a). Id., 251-52, citing Osterlund, supra, 506-507. A commissioner may find that a job search would be futile given a claimant’s background and the nature of his injury, but he is certainly not required to reach such a conclusion in all cases. See Rose, supra; Barnett v. Harborview Manor, 3189 CRB-3-95-10 (decided Feb. 27, 1997); Rapuano v. Standard Builders, Inc., 14 Conn. Workers’ Comp. Rev. Op. 290, 1975 CRB-5-94-2 (Sept. 11, 1995).

Here, the trier found that the claimant was capable of comprehending the English language, and cited medical reports, including one by a commissioner’s examiner, stating that the claimant was capable of light duty work. There is no indication that he accepted the claimant’s argument that there are no jobs available within the claimant’s limitations; in fact, he specifically discounted Dr. D’Angelo’s opinion that the claimant was unemployable. These findings support his conclusion that the claimant has had a light work capacity since November 13, 1987, and they support his decision to deny further total disability benefits to the claimant. We thus affirm the trial commissioner’s decision.

Commissioners James J. Metro and John A. Mastropietro concur.

Workers’ Compensation Commission

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