State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Agosto v. City of Bridgeport

CASE NO. 3967 CRB-04-99-01

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 12, 2000

SANDRA AGOSTO

CLAIMANT-APPELLEE

v.

CITY OF BRIDGEPORT

EMPLOYER

SELF-INSURED

and

BERKLEY ADMINISTRATORS

ADMINISTRATOR

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Vincent Noce, Jr. Esq., Copertino & Noce, 3354 Main Street, Bridgeport, CT 06606.

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

This Petition for Review from the January 13, 1999 Finding and Award of the Commissioner acting for the Fourth District was heard September 10, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondents have petitioned for review from the January 13, 1999 Finding and Award of the trial commissioner acting for the Fourth District. In that decision the trial commissioner found that the claimant continued to be temporarily totally disabled due to an injury which occurred on January 25, 1982 and three subsequent failed back surgeries. In support of their appeal, the respondents contend that the medical evidence indicates that the claimant had a light duty capacity, and thus the trial commissioner erred in concluding that the claimant was totally disabled.

The trial commissioner found the following relevant facts. On January 25, 1982, the claimant sustained a low back injury while employed as a nurse’s aide with the respondent employer. The claimant underwent back surgery, and in 1996, the claimant underwent three additional surgical procedures including a fusion. The claimant attempted working for approximately one month after her initial surgery. The claimant is on prescription narcotic pain medication to control her pain and to assist with sleep. She uses a cane and on occasion she uses a wheelchair at home. The claimant has not driven since 1982 and does not have a driver’s license. The claimant lives with her sister in an apartment and rarely gets out, and has to be driven to her medical appointments. The claimant is in her mid thirties and has a high school diploma. Prior to her injury, the claimant had an ambition to become a registered nurse. The claimant has not worked in sixteen years.

The claimant’s treating physician, Dr. Needham, noted severe physical restrictions due to the failed surgeries, including no bending, twisting, stooping, or crawling, with limited lifting of ten to fifteen pounds, a need to stand frequently, limited sitting, and a need to lie down as needed to take pressure off of her back to relieve her pain. Dr. Needham opined that the claimant is totally disabled. The claimant was examined by Dr. Druckemiller, who concurred that the claimant had three failed back surgeries. Dr. Druckemiller opined that the claimant may have a light duty work capacity with restrictions, some of those restrictions being more severe than those imposed by her treating physician. (Finding ¶ 17).

In support of their appeal, the respondents contend that the medical evidence indicates that the claimant has reached maximum medical improvement and that the claimant has a light duty work capacity. The respondents thus argue that it was error to award temporary total disability benefits. Whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998); Meredina v. Anderson Insurance Co., 3460 CRB-3-96-11 (April 8, 1998). Similarly, the question of whether a claimant has a light duty capability and has adequately pursued that capability is a factual decision for the commissioner. Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 1980 CRB-1-94-3 (Aug. 30, 1995). Upon review of the factual issues underlying this determination, we will only disturb the commissioner’s decision if his conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

A claimant may have some type of light duty capability and still be totally disabled under § 31-307. Hidvegi, supra, citing Gerena v. Rockbestos Company, 14 Conn. Workers’ Comp. Rev. Op. 394, 395, 1986 CRB-5-94-3 (Oct. 17, 1995).1 Indeed, in Osterlund v. State, 135 Conn. 498 (1949), our Supreme Court stated that “[a] finding that an employee is able to work at some gainful occupation within his reasonable capacities is not in all cases conclusive that he is not totally incapacitated. If, though he can do such work, his physical condition due to his injury is such that he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.” Osterlund, supra, 506. Moreover, a claimant may continue to be temporarily totally disabled after reaching maximum medical improvement. Hidvegi, supra.

In the instant case, the trial commissioner concluded that the claimant continued to be temporarily totally disabled, citing her numerous physical restrictions, her need to lie down during the day, and her narcotic pain medication. The trial commissioner further found that the claimant had a restricted employment history, and has been out of the work force for sixteen years. The trial commissioner’s conclusion that the claimant was totally disabled is fully supported by the record, including the opinions of Dr. Needham and Dr. Druckemiller. As the record amply supports the factual findings and conclusions of the commissioner, we will not disturb them. Fair, supra.

In support of their appeal, the respondents contend that the trial commissioner erred in denying their Motion to Correct which they contend included undisputed and material facts. Specifically, the respondents contend that the trial commissioner should have corrected his findings to indicate that Dr. Druckemiller examined the claimant at the request of a trial commissioner. The respondents contend that this is material because a trial commissioner is expected to explain his reasons for not following a trial commissioner’s examiner’s opinion.

We agree with the respondents that the parties generally expect that an examination performed at the direction of a trial commissioner pursuant to § 31-294f will provide the trier with strong guidance. See Iannotti v. Amphenol/ Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995), aff’d. 40 Conn. App. 918 (1996) (per curiam). However, in the instant case, Dr. Druckemiller’s opinion does not contradict the conclusion of the trial commissioner regarding the claimant’s ability to work, as Dr. Druckemiller found some of the claimant’s physical restrictions to be more severe than did her treater, and Dr. Druckemiller merely opined that the claimant may have a light duty work capacity. (Finding ¶ 17; Joint Exh. 1). Thus, in effect, the trial commissioner did accept Dr. Druckemiller’s opinion, and therefore was of course not obligated to state any reasons for not following his opinion.

It is necessary to provide a brief response to the argument in the concurring opinion that a trial commissioner should never have to state a reason for not following the opinion of a commissioner’s examiner. We agree, of course, that the trial commissioner is the ultimate finder of fact. Indeed, the Iannotti decision affirmed a Finding and Award in which the trial commissioner chose not to follow the opinion of a commissioner’s examiner. In Iannotti, supra, the board explained as follows:

[W]hen a commissioner orders a medical examination, there is usually an expectation among the parties that said examination will provide strong guidance to the commissioner. Where a commissioner chooses not to adopt the diagnosis of the physician performing that examination, he or she should articulate the reasons behind his or her decision to disregard the examiner’s report.
Iannotti, supra, at 321.

The reasoning in Iannotti, supra, is sound, and should be followed. See Ross v. Giardi, 237 Conn. 550, 554-55 (1996) (Stare decisis gives stability and certainty to our case law, conditions which are indispensable to any well-ordered system of jurisprudence). Thus, we reiterate here that a trial commissioner “should articulate the reasons behind a decision to disregard a § 31-294f examiner’s opinion, [even though] the ultimate decision is always with the commissioner.” Nieves v. SCM Company, 3317 CRB-6-96-4 (July 9, 1997), citing Iannotti, supra.

In further support of their appeal, the respondents contend that the claimant failed to produce any evidence to refute the opinion of Mr. Lesko regarding the availability of light duty work. The trial commissioner found that the respondents had a labor market survey performed and that Mr. Lesko, who testified regarding the content of the survey, had never interviewed the claimant. In a workers’ compensation case, the trial commissioner is the “sole arbiter of the weight of the evidence and the credibility of the witnesses.” Keenan v. Union Camp Corp., 49 Conn. App. 280, 286 (1998). Moreover, a trial commissioner has the “right to reject testimony even if seemingly uncontradicted.” Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 235, 1000 CRD-5-90-4 (Oct. 30, 1991). We find no error in the trial commissioner’s rejection of Mr. Lesko’s opinion regarding the availability of light duty work.

The trial commissioner’s decision is affirmed.

Commissioner Stephen B. Delaney concurs.

ANGELO L. dos SANTOS, COMMISSIONER, CONCURRING. I agree with the majority decision in this case. However, I write separately in order to state my view regarding the role of a trial commissioner’s examination. Specifically, I wish to emphasize that because the trial commissioner is the ultimate finder of fact, the trial commissioner should never be required to accept one medical opinion as more credible than another.

In my opinion, it is significant that the trial commissioner hearing the formal hearing may not necessarily have been the commissioner who chose the physician to conduct the commissioner’s examination. Indeed, it is often the case that during the informal hearing process, a commissioner orders an examination pursuant to § 31-294f, and that physician’s opinion is subsequently introduced at a formal hearing which is presided over by a different commissioner. It would be unreasonable to require, or even to encourage, the trial commissioner presiding over the formal hearing to give greater weight or consideration to that medical opinion.

This board has stated as follows: “Although we have stressed that a commissioner should articulate the reasons behind a decision to disregard a § 31-294f examiner’s opinion, the ultimate decision is always with the commissioner.” Nieves v. SCM Company, 3317 CRB-6-96-4 (July 9, 1997) (emphasis added). In my opinion, a trial commissioner is not obligated to articulate any reason for disregarding a § 31-294f examiner’s opinion. As explained above, the trial commissioner may not have even ordered the examination. Moreover, requiring or even suggesting that a trial commissioner is obligated to comment on one medical opinion contradicts the fact-finding role of the trial commissioner. Indeed, it has repeatedly been held that it “is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony….” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 349 (1999) (citations omitted). Moreover, when “the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it….” Id. “This standard clearly applies to conflicting expert testimony. It [is] the province of the commissioner to accept the evidence which impress[es] him as being most credible and more weighty.” Id., citing O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999) (internal quotation marks omitted).

Indeed, our Appellate Court has held that a trial commissioner may disregard the opinion of a physician who conducted a commissioner’s examination pursuant to § 31-294f. Specifically, in Tartaglino v. Dept. of Correction, 55 Conn. App. 190 (1999), the court addressed the claimant’s argument that “the commissioner failed to accept the conclusion of the physician ordered by the commissioner himself to examine the [claimant].” Id. at 195. The court explained that “[e]ven when the [claimant] has been examined pursuant to General Statutes § 31-294f(a)… it is still ‘within the commissioner’s discretion to credit all, part or none of [the ordered physician’s] opinion….’” Id. at 195-96, citing Gillis v. White Oak Corp., 49 Conn. App. 630, 638, cert. denied 247 Conn. 919 (1998).

Significantly, the language of § 31-294f does not require the commissioner to give greater weight to the opinion of the commissioner’s examiner, nor does the statute require the commissioner to articulate a reason for totally disregarding that opinion. I would thus not require a trial commissioner to provide a reason for not following the opinion of a commissioner’s examiner.

Finally, in response to the majority’s concern regarding stare decisis, I agree that stare decisis is an important element in judicial decision making.2 However, the importance of stare decisis may be overshadowed by the need to modify or overrule a rule of law. Indeed, our Supreme Court recently overruled a long line of precedent in George v. Ericson, 250 Conn. 312 (1999), where the court addressed the admissibility of the testimony of a nontreating physician in a civil case. Specifically, the court overruled Brown v. Blauvelt, 152 Conn. 272 (1964) which set forth the evidentiary rule barring the admission of the testimony of a nontreating physician. The court stated that stare decisis is “not an inexorable command.” Id. at 319. The court further explained: “Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better. . . A court, when once convinced that it is in error, is not compelled to follow precedent.” Id. at 318 (citation omitted).

In the instant case, I am convinced that the general rule regarding a § 31-294f examiner’s opinion as set forth in Iannotti, supra, specifically that where a commissioner chooses not to adopt the diagnosis of the physician performing that examination, he or she should articulate the reasons behind his or her decision to disregard the examiner’s report, should be overruled. In my opinion, the above rule must be viewed in light of the need to protect the fact finding role of the commissioner, together with the reality that a trial commissioner must confront every day when conducting hearings, including the fact that the trial commissioner conducting the formal hearing is often not the trial commissioner who ordered the § 31-294f examination.

1 In Hidvegi, the Board affirmed that trial commissioner’s award of temporary total disability benefits pursuant to § 31-307. In that case, although the claimant may have had a theoretical light duty capability, the commissioner found that her physical restrictions, age, limited education, and other factors severely curtailed her employability. The commissioner also found that the claimant had no readily transferable skills, and that these factors rendered her labor unmarketable when combined with the physical restrictions resulting from her injuries. BACK TO TEXT

2 In fact, the board recently recognized in Zito v. Stop & Shop, 3929 CRB-3-98-11 (Feb. 17, 2000) that “nothing in § 31-294f requires the commissioner to articulate a reason for disregarding the opinion of the commissioner’s examiner.” In Zito, supra, the board found that the commissioner did in fact adequately articulate his reasons for not accepting the examiner’s opinion. Nevertheless, the decision demonstrates the board’s recognition that there is no statutory requirement that a commissioner articulate a reason for disregarding the opinion of a § 31-294f examiner. I further note that the board’s decision in Iannotti, supra, should be read as being limited to its facts- specifically the facts in that case indicate that the trial commissioner who conducted the formal hearing was (apparently) the commissioner who had ordered the examination. Moreover, in Iannotti the board stated, “We are unwilling to encroach upon the commissioner’s authority to determine the credibility of medical evidence regardless of the fact that one particular examination was performed pursuant to § 31-305 [now 31-294f].” Id. at 321. BACK TO TEXT

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