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Garcia v. Legare Plumbing & Heat

CASE NO. 3856 CRB-02-98-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 23, 1999

JUDE A. GARCIA

CLAIMANT-APPELLEE

v.

LEGARE PLUMBING & HEAT

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Brian W. Prucker, Esq., Fitzgerald & Prucker, 212 Talcottville Road, Rte. 83, Vernon, CT 06066.

The respondents were represented by Nancy E. Berdon, Esq., Sizemore Law Offices, Crossroads Corporate Park, 6 Devine Street, 1st Floor, North Haven, CT 06473.

This Petition for Review from the July 7, 1998 Finding and Award of the Commissioner acting for the Second District was heard March 26, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the July 7, 1998 Finding and Award of the Commissioner acting for the Second District. They argue on appeal that the evidence in this case did not support the trier’s findings that the claimant was totally disabled from October 3, 1994 through December 20, 1995 as the result of a compensable head injury, and that he sustained a 20% permanent partial disability of the brain. We affirm the trial commissioner’s decision.

The trier found that the claimant suffered traumatic injuries to his head, spine, right arm and brachial plexus as the result of a fall from a ladder during the course of his employment on August 10, 1990. He subsequently returned to work with the respondent employer, but was laid off in late 1991 or early 1992. He then worked for another company before moving to California in 1993, where he currently resides. While in California, the claimant was employed as a busboy, and then took a job as an apprentice plumber. He testified that he began experiencing shortness of breath and tingling in his right side while working for the plumbing company. The claimant also admitted that he did not receive medical treatment between March 1991 and February 1993, when he felt pain in his right arm after lifting his infant daughter one day. He did say, however, that he has suffered from excruciating headaches ever since his 1990 compensable injury.

The claimant began seeing Dr. Amos, a California neurologist, on October 3, 1994. Dr. Amos found that the brachial plexus injury and the headaches were due to the injury, and indicated that the claimant was disabled from work from that date until his maximum medical improvement date of December 20, 1995. He also opined that the claimant was depressed as a result of the brain injury, which opinion was shared by Dr. Furst, a neuropsychologist who diagnosed the claimant with a cognitive disorder. The trier found their opinions persuasive, and ordered the respondents to pay temporary total disability benefits, the doctors’ medical bills, and permanent partial disability awards for a 20% disability of the brain and a 30% disability of the right upper master arm. The respondents have appealed the trial commissioner’s order.

The issue in this case is whether the medical reports of Drs. Amos and Furst support the factual findings and conclusions of the trial commissioner. As we have often stated, “A trial commissioner’s fact-finding authority entitles him to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses, even if such evidence seems to be uncontradicted.” Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). This board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Pallotto, supra; Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). Further, this board does not retry the facts, and will not disturb the legal conclusions that the trier has drawn from the findings unless they are the product of an incorrect application of the law to the facts or an inference illegally or unreasonably drawn from them. Pallotto, supra; Fair v. People’s Savings Bank, 207 Conn. 535, 539-41 (1988).

The respondents contend in their brief that there is “no sound support” for the trier’s finding that the claimant was totally disabled from October 3, 1994 through December 20, 1995. They assert that Dr. Amos’ reports (particularly his letter of May 2, 1996) do not express that opinion, and the respondents also stress that the claimant testified that he worked at a few odd jobs during 1994 and 1995. Although neither Dr. Amos nor Dr. Furst specifically stated whether the claimant had a work capacity during the twelve-plus months in question, a review of their medical reports does provide support for the trier’s conclusion.

Dr. Furst stated in a report dated October 4, 1995 that, due to memory and comprehension problems, the claimant was probably totally disabled during times when he was experiencing severe headaches, and observed that the claimant “showed remarkable variation in his behavior from appointment to appointment, seemingly related to his level of headache pain.” Claimant’s Exhibit G. On one occasion in August 1995, the doctor described the claimant’s cognitive test results as having drastically improved from the poor results of one week earlier when the claimant reported that he only had a slight headache. However, a little over an hour into the session, the claimant began suffering symptoms of a headache and nausea, and his condition deteriorated rapidly. One could infer that the claimant was regularly forced to deal with such vicissitudes in his health. Dr. Amos, meanwhile, stated that the claimant suffers from a “post traumatic type headache syndrome which has migrainous features,” which has led to an overlay of depression, and that his brachial plexus injury “precludes him from significant use of the right upper extremity and employment in the open labor market.” Claimant’s Exhibit F.

As for the claimant’s testimony, he stated that he worked as a busboy “about for five months” sometime around 1994, and then worked at the plumbing company for about a year. Transcript, p. 22. Since then, he has not worked. Between the vagueness with which these dates were described and the medical and testimonial evidence of the claimant’s memory problems, the trial commissioner was not required to treat the claimant’s approximation of his work history as irrefutable proof that he had a work capacity through 1995. Instead, the trier was entitled to extrapolate the claimant’s condition from the medical reports, and surmise that he was totally disabled during the period of time that Dr. Amos and Dr. Furst treated him, i.e., from October 3, 1994, through his maximum medical improvement date of December 20, 1995. That finding of disability is dependent on the weight that the trier accorded the evidence, and we cannot disturb it on review. Early v. Maryland Insurance Group, 3517 CRB-8-97-2 (April 24, 1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995).

The respondents also argue that ¶ 25 of the commissioner’s findings, in which he notes that Dr. Amos rated the claimant with a 20% permanent partial impairment of the brain, is not supported by the evidence. Dr. Amos actually states that “Mr. Garcia has a 20% impairment of the whole person regarding impairment of complex integrated cerebral functions that require supervision or direction regarding his ability to perform activities of daily living or job duties. I would rate this as a 20% impairment of the whole person based upon his neurological examination, history and neuropsychological testing provided above.” Claimant’s Exhibit F. The respondents argue that this is not a brain rating, but a “whole person” rating, which Connecticut workers’ compensation law does not recognize. Piscitelli v. Connecticut Coke/Eastern Gas & Fuel, 6 Conn. Workers’ Comp. Rev. Op. 94, 96, 575 CRD-3-87 (Jan. 26, 1989).

At the time of the claimant’s injury, § 31-308 C.G.S. did not yet prescribe a scale of a specific number of weeks of compensation for a permanent partial disability of the brain. Instead, compensation for a permanent partial brain incapacity fell under § 31-308(d) [repealed in 1993], which covered “any organ or part of the body not otherwise provided for herein.” Chialastri v. Angelo’s Trucking, 16 Conn. Workers’ Comp. Rev. Op. 239, 240, 3256 CRB-8-96-1 (June 24, 1997). This statute is applicable to the proceedings here, and it bestowed broad discretion upon the trier by stating that he “may award compensation as he deems just” for an unscheduled organ or body part. The inclusive language of § 31-308(b) moderately tempers the importance of narrowing the focus of Dr. Amos’ impairment rating to the brain itself, especially because the doctor clarified that his 20% “whole person” disability rating based on the claimant’s impaired cerebral processes was independent of the effect that the claimant’s loss of use of his right upper extremity had upon his function as a “whole person.” Claimant’s Exhibit F.

Still, the trial commissioner reasonably inferred that Dr. Amos’ diagnosis of 20% impairment directly reflected the degree of his loss of brain function. Unlike most other organs and body parts, the loss of use of one’s brain is best measured by the overall functional impairment which one is experiencing. As the center of nerve control, memory, and consciousness for the human body, the encephalon is not a mere flesh-and-blood appendage, such as an arm or a leg, or even a vital internal component such as the heart. Damage to one’s “integrated cerebral functions,” as Dr. Amos puts it, is of the most severe nature imaginable, and is operatively identical to damage to the person as a whole, at least in terms of calculating the percentage of loss. With respect to Dr. Amos’ permanency rating, his description of a “20% impairment of the [claimant’s] whole person” based on his impaired cerebral functions bespeaks no less than a 20% impairment rating of the claimant’s brain. We will not disturb that decision.

The trial commissioner’s decision is hereby affirmed. If any compensation due has remained unpaid pending appeal, interest is awarded pursuant to § 31-301c(b).

Commissioners George A. Waldron and John A. Mastropietro concur.

Workers’ Compensation Commission

Page last revised: April 8, 2005

Page URL: http://wcc.state.ct.us/crb/1999/3856crb.htm

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