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Pontoriero v. Sanzo Concrete Construction Co., Inc.

CASE NO. 3492 CRB-04-96-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 6, 1998

GUISEPPE PONTORIERO

CLAIMANT-APPELLANT

v.

SANZO CONCRETE CONSTRUCTION CO., INC.

EMPLOYER

and

KEMPER GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Richard Gross, Esq., Cantor, Floman, Russell & Gross, P.C., 378 Boston Post Road, P. O. Drawer 966, Orange, CT 06477, and James Berryman, Esq., Suisman, Shapiro, Wool, Brennan & Gray, Union Plaza #200, P. O. Box 1591, New London, CT 06320.

The respondents were represented by Tracey Green Cleary, Esq., Law Offices of Michael Brodinsky, 127 Washington Ave., P. O. Box 35, North Haven, CT 06473.

This Petition for Review from the November 27, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District was heard June 27, 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 November 27, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District. He argues on appeal that the trial commissioner erred by dismissing his claims for a psychiatric overlay to his 1987 compensable back injury and for further § 31-308a benefits. We affirm the trial commissioner’s decision.

The question of whether a particular condition is causally related to a compensable injury is a factual matter. Green v. State of Connecticut/UConn, 15 Conn. Workers’ Comp. Rev. Op. 412, 414, 2283 CRB-2-95-1 (August 28, 1996). Factual issues in workers’ compensation cases are to be decided by the trial commissioner based on her evaluation of the weight of the evidence and the credibility of the testimony, including medical opinions. Federchuck v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp. Rev. Op. 476, 479, 2298 CRB-2-95-2 (Sept. 16, 1996); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). This board has no authority on review to reassess a commissioner’s evaluation of the evidence before her. We may alter a commissioner’s findings only insofar as they contain facts found without evidence, or insofar as they omit material and undisputed facts. Webb, supra, 71, citing Wheat v. Red Star Express Lines, 156 Conn. 235, 248 (1968).

The commissioner found here that two psychiatrists diagnosed the claimant with depression. However, she concluded that the claimant had failed to establish a causal connection between his 1987 back injury and the claimed psychiatric overlay, relying on the testimony of Dr. Rubenstein, who performed an independent medical examination on January 22, 1993. Dr. Rubenstein stated that, in his view, “Mr. Pontoriero does not present with a psychiatric disorder that is intrinsically disabling . . . [i]n fact, he appears to be quite motivated to work . . . . He does present with a Dysthymic Disorder which appears to derive from the accident of August 15, 1987 and the various physical limitations deriving from that event. . . . [T]his individual indeed has a work capacity on a psychiatric basis, although it appears evident that any work that he can do should not be manual in nature.” Claimant’s Exhibit 3.

The commissioner was entitled to infer from Dr. Rubenstein’s report that the claimant did not suffer from a disabling psychiatric condition related to his work injury of 1987. The doctor never went beyond stating that the claimant suffered from a dysthymic disorder, which is defined as “melancholia” by Taber’s Cyclopedic Medical Dictionary (12th Ed. 1973). Even without this report, the trier of fact would not have been bound to accept the opinion of Dr. D’Apice supporting the claimant’s allegation, as she was entitled to weigh the credibility of all medical opinions, uncontradicted or not, in reaching her decision. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). In fact, the trier stated that the “claimant’s demeanor on the witness stand and answers regarding how often and diligently he sought to return to full duty work, what efforts were made prior to 1994 to re-train vocationally, efforts made to improve English skills in writing, when the new alleged injuries manifested, and why he can do nothing more than drive a school bus all call into question the credibility of the claims, the history reported to each medical examiner and his current status both medically and mentally and his status before the accident medically.” Clearly, credibility was a key issue here. In this situation, we can do nothing other than affirm the trial commissioner’s decision that the claimant did not prove the existence of a compensable psychiatric overlay.

We are also limited in the degree to which we may review a commissioner’s decision to grant or deny benefits under § 31-308a. That section gives the trier discretion to award additional permanent partial disability benefits

“equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age . . . . The duration of such compensation shall be determined upon a similar basis by the commissioner.”

Absent an abuse of discretion, we will not reverse a commissioner’s decision to grant or deny benefits under this statute. Figueroa v. Laidlaw Transit, 3154 CRB-4-95-9 (decided March 4, 1997). “If the statutory factors are considered by the trial commissioner in making his or her decision, and the claimant’s earning capacity is his focus, this board cannot tamper with the trier of fact’s judgment.” Kulhawik v. Ace Beauty Supply, 15 Conn. Workers’ Comp. Rev. Op. 159, 160, 2116 CRB-2-94-8 (Feb. 1, 1996).

The claimant received benefits under § 31-308a for a total of 148 weeks between November 1991 and September 1995. He sought continued benefits for the present and future, alleging a permanent loss of earning capacity and permanent work restrictions. The commissioner made findings concerning the claimant’s personal and educational background and his work experience as a stonemason. She noted that the claimant had disregarded the recommendations of his doctors that he be retrained in 1988-89, and that he did not work anywhere between 1991 and October 1994. At that point, he obtained jobs driving a van and then a school bus for 20-24 hours per week, earning far less than the $957.91 gross wage he was making at the time of his 1987 accident.

After ruling that the claimant’s alleged right knee and arm injuries and his claimed psychiatric overlay were not compensable, the commissioner cited a vocational report that identifies eight jobs that the claimant could perform at between $11.21 and $16.21 per hour, and gives the claimant a 40-hour-per-week work capacity. She also noted that he had already received § 31-308 benefits for a number of weeks in excess of his permanent partial disability ratings.1 She criticized the claimant’s failure to maximize his earning potential or improve his skills, and would not accept the claimant’s assertion of a permanent loss of earning capacity. She found that the economic climate of this state had limited the building trades accessible to the claimant, and believed him capable of doing many jobs other than stone masonry work in the skilled labor arena. Thus, she declined his request for additional § 31-308a benefits.

It is clear that the commissioner considered all of the statutory criteria listed in § 31-308a in declining the claimant’s request, as required by the law. See Kulhawik, supra. However, she also added a finding in conjunction with her ruling on the claimant’s Motion to Correct stating that “while there is no requirement to maximize the earning capacity to be eligible for 31-308a benefits, this Commissioner uses this as an additional measure to determine the duration of []such an award of additional discretionary benefits and to determine will 31-308a benefits lead to improving the earning capacity.” The claimant asserts that the commissioner improperly introduced an extra element into the equation by considering this factor.

A claimant is not required to introduce evidence that he has “maximized” his earning potential in order to establish an earning capacity in a claim for § 31-308a benefits. Genovesi v. Choice Designs, Inc., 13 Conn. Workers’ Comp. Rev. Op. 218, 220, 1745 CRB-5-93-6 (April 12, 1995). However, this does not mean that the trier is forbidden from considering whether a claimant has attempted to realize his earning potential. In Johnston v. Thames Permacrete Corp., 15 Conn. Workers’ Comp. Rev. Op. 402, 2278 CRB-2-95-2 (Aug. 16, 1996), a claimant was awarded § 31-308a benefits after the trier noted his strong work ethic and his “laudable efforts to maximize his earning capacity.” The claimant’s failure to look for higher-paying jobs did not prevent the trier from basing his earning capacity on the jobs he actually held. Id., 405.

It is not inconsistent with Johnston for the trier in this case to find that the claimant can do more than perform a part-time bus driving job, and to note that he has not attempted to maximize his earning capacity by searching for full-time employment at a higher rate of pay. This is similar to a finding that the claimant has failed to perform sufficient job searches to establish that he is unable to earn the same wages as an employee currently working in the position the claimant held before becoming injured. Such a finding is often integral to a § 31-308a claim. See Kulhawik, supra. Here, the commissioner simply found another way to say that the claimant did not make much of an effort to find suitable employment. She was thus unable to determine his true earning capacity, and permissibly exercised her discretion to deny further § 31-308a benefits.

The trial commissioner’s decision is hereby affirmed.

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

1 On July 1, 1993, § 31-308a was amended to limit the duration of an award to the length of time an employee received permanent partial disability benefits. Although this amendment does not apply to injuries occurring before July 1, 1993, the commissioner still had discretion to determine the duration of the instant claimant’s award. See Johnson v. Thames Permacrete Corp., 15 Conn. Workers’ Comp. Rev. Op. 402, 405, 2278 CRB-2-95-2 (Aug. 16, 1996); Richmond v. General Dynamics Corp./Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 345, 347, 1825 CRB-2-93-8 (April 27, 1995). BACK TO TEXT

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