CASE NO. 3671 CRB-02-97-08
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 24, 1998
SECOND INJURY FUND
The claimant was represented by Thomas Wilson, Esq., Suisman, Shapiro, Wool, Brennan, Gray & Greenberg, P.C., Two Union Plaza, Suite 200, P. O. Box 1591, New London, CT 06320.
The respondent employer and the Second Injury Fund were represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the August 12, 1997 Finding and Award of the Commissioner acting for the Second District was heard January 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles
JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the August 12, 1997 Finding and Award of the Commissioner acting for the Second District. The Fund argues on appeal that the trial commissioner erred by concluding that the claimant was totally disabled even though the underlying facts did not support that conclusion. We agree, and reverse the trial commissioner’s decision.
The claimant sustained a work-related injury to his low back on June 22, 1984. Pursuant to § 31-349 C.G.S., liability for that injury was subsequently transferred to the Second Injury Fund. The claimant was found to be totally disabled as of August 27, 1990. This status continued through August 28, 1996, when a Form 36 was approved by a commissioner after an emergency informal hearing. Several formal hearings were then held on the matter. See Anguish v. TLM, Inc., 3437 CRB-7-96-9 (Jan. 20, 1998).
The trial commissioner found that the claimant was born June 8, 1947. He had a turbulent school history, having been expelled from both kindergarten and the eighth grade. He had problems with the juvenile authorities, and was placed in a correctional facility for truancy, statutory rape and fighting. He also reported that he may have killed a man by running over him with his car. The claimant finished the 11th grade, and received his equivalency diploma at the age of 31. His work history includes running a grocery store, operating a printing press, running a gas station, building valves in a factory, bartending, and cable installation. His personal life has been marked by conflicts with his children and three wives. He suffers from a number of health problems, including depression, hypertension, spondylolysis, alcoholism, Hepatitis B, the Epstein-Barr virus, a history of several bone fractures, and a previous self-inflicted gunshot wound to the foot. The claimant also has a 25% permanent partial disability of the back from his compensable injury.
The commissioner cited a 1990 report by a psychiatrist, Dr. Browne-Mayers, who explained that although the claimant’s physical injury has accentuated his emotional problems, it is not the sole cause of his difficulties, as the pre-existing emotional condition appears to be a major factor. The trier also cited a 1996 independent medical examination by Dr. Grayson, another psychiatrist. Dr. Grayson observed that the claimant had clearly documented emotional and behavioral problems throughout his life, but was able to function at least marginally until being physically injured at work in 1984. He stated that the claimant was capable of working from a psychiatric standpoint despite his depression, which is not disabling in and of itself.
The commissioner explicitly found Dr. Grayson’s testimony to be more persuasive than the testimony and opinions offered by Dr. Reich, the claimant’s treating physician. She also found credible the opinion of Dr. Krompinger, who concluded that, from an orthopedic standpoint, the claimant was capable of being vocationally trained for a sedentary or light duty occupation. The trier noted that the claimant has been able to seek qualification as a National Rifle Association instructor, and is able to go fishing. She also granted a correction noting that the opinion of a vocational expert had not been offered to show that the claimant has no marketable skills, nor was it shown that he could not find light duty work without vocational retraining and assistance. This correction was granted despite ¶ 14 of the award, where the commissioner found that it was unlikely the claimant would return to work without vocational retraining and assistance.
Despite these findings, the trier concluded that the claimant’s 25% permanent partial disability of the back, age, education, training, pre-existing mental and physical health problems and work-related depression all rendered him temporarily totally disabled as of August 28, 1996, with the disability ongoing. She thus ordered the Fund to pay the claimant temporary total disability benefits as of that date. The Fund has appealed that order to this board.
The simple question presented in this appeal is whether the underlying facts found by the trial commissioner support a finding of total disability. A trial commissioner’s conclusions must stand on review unless they result from an incorrect application of the law to the subordinate facts or from an inference unreasonably or illegally drawn from them. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The findings themselves cannot be changed unless they contain facts found without evidence to support them, or they fail to include undisputed material facts. Webb, supra.
Admittedly, there is evidence in the record that, if believed by the trial commissioner, would support her conclusion that the claimant continues to be totally disabled. Dr. Zeppieri’s reports, which are cited by the claimant in his brief, unequivocally state that the claimant is totally disabled in the opinion of that physician. See Claimant’s Exhibit C. Dr. Reich, the claimant’s psychiatrist, also stated the same opinion. Claimant’s Exhibit E. The problem here is that the trial commissioner specifically found the opinion of Dr. Grayson more persuasive than that of Dr. Reich, whom she characterized as “openly hostile” to the respondent. Finding and Award, ¶ 9. She also found the opinion of Dr. Krompinger more persuasive than that of Dr. Zeppieri, at least concerning the claimant’s orthopedic limitations. Id., ¶ 11. Dr. Krompinger and Dr. Grayson each concluded that the claimant was capable of working from an orthopedic and psychiatric standpoint, respectively. Id., ¶¶ 8, 10. These findings directly contradict the conclusion that the claimant is totally disabled.
We recognize that the question of whether a claimant has a work capacity is a separate issue from a claimant’s physical condition. Osterlund v. State, 135 Conn. 498, 506-507 (1949); Barnett v. Harborview Manor, 3189 CRB-3-95-10 (Feb. 27, 1997); Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 251-52, 1980 CRB-1-94-3 (Aug. 30, 1995). However, the trial commissioner corrected her decision to find that the claimant has not established that he requires vocational retraining or other special assistance before he can return to work. As mentioned above, the original award contains a finding that it is “unlikely the Claimant will return to work without vocational retraining and assistance,” but that finding is not significantly supported by evidence in the record. See Webb, supra, 71. Indeed, it appears to conflict with the commissioner’s subsequent correction. Taken in the light most favorable to the claimant, the issue of the claimant’s need for vocational rehabilitation is at most inconclusive. This does not suffice to support the legal conclusion that the claimant is totally disabled from all employment.
Based on all of the factual findings, we are unable to discern sufficient support for the conclusion that the claimant is totally disabled. Therefore, we reverse the trial commissioner’s decision, and order the approval of the Form 36 reinstated.
Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.