Osowiecki v. O & G Industries

The claimant was represented by Richard Gilland, Esq., Gilland & Gilland, 290 Main Street, Terryville, CT 06786.

The employer and its insurer were represented by Richard T. Stabnick, Esq. and Margaret McGrail, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the March 8, 1999 Finding and Award of the Commissioner acting for the Fifth District was heard October 15, 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 claimant has petitioned for review from the March 8, 1999 Finding and Award of the trial commissioner acting for the Fifth District. In that decision the trial commissioner found that the claimant sustained a relatively minor soft tissue injury to his neck and back on September 20, 1993, and concluded that there was no permanent disability to his neck or back. In support of his appeal, the claimant contends that the trial commissioner erred in concluding that the claimant ceased being totally disabled on November 8, 1993. Additionally, the claimant argues that the trial commissioner failed to provide a reason for not following the opinion of Dr. Flynn, who conducted an examination at the request of a trial commissioner. The claimant has also filed a Motion to Submit Additional Evidence.

The trial commissioner found the following relevant facts. On September 20, 1993, the claimant sustained a minor soft tissue injury to his neck and back while employed with the respondent employer. The claimant first sought treatment with Dr. Saporito, a chiropractor, who treated the claimant on a monthly basis from September 27, 1993 to January 20, 1999. The claimant testified that from September 20, 1993 onward he was capable of doing something other than manual labor but had not looked for employment. Dr. Saporito issued disposition slips contemporaneous with treatment which indicated the ability to return to regular employment. Records rendered by Dr. Saporito contemporaneous with treatment indicate “no work” until November 8, 1993. The trial commissioner found that the claimant was temporarily totally disabled from September 27, 1993 to November 8, 1993 due to the September 20, 1993 injury, and thus granted the respondents’ Form 36 effective on November 15, 1993, the date on which it was filed.1

On June 14, 1994, pursuant to § 31-294f, a trial commissioner’s examination of the claimant was performed by Dr. D’Angelo, an orthopedic surgeon, who opined that the claimant was capable of full duty work and had not sustained any permanent impairment. Subsequently, pursuant to the request of another trial commissioner, an examination of the claimant was performed by Dr. Flynn, an orthopedic surgeon, who indicated that the claimant sustained a “significant injury” which resulted in a 7.5 percent impairment of the cervical spine and a five percent impairment of the lumbar spine.

In support of his appeal, the claimant contends that the trial commissioner failed to provide a reasonable explanation of his decision not to follow Dr. Flynn’s opinion regarding permanent impairment. In Zito v. Stop & Shop, 3929 CRB-3-98-11 (Feb. 17, 2000), we recognized 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.” Id., citing Iannotti v. Amphenol/ Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995). In the instant case, the trial commissioner provided a reason for not following Dr. Flynn’s opinion, specifically that Dr. Flynn’s opinion was based upon the claimant’s significantly exaggerated version both of the incident and of his subsequent physical condition. (Finding ¶ F). The commissioner thus adequately articulated a reason for disregarding Dr. Flynn’s opinion.

We note that the concurring opinion in this case states that a commissioner should not have to articulate any reason for disregarding a § 31-294f examiner’s opinion. In response to this contention, we agree that the trial commissioner is the ultimate finder of fact, but we emphasize the need to follow precedent and the corresponding need to follow the Iannotti decision which urges commissioners to provide a reason when they choose not to follow a § 31-294f examiner’s opinion. In Iannotti, where the board affirmed a Finding and Award in which the trial commissioner chose not to follow the opinion of a commissioner’s examiner, the board explained as follows:

Recently, in Agosto v. Bridgeport, 3967 CRB-4-99-1 (April 12, 2000), the board explained that the reasoning in Iannotti, supra, is sound, and should be followed. Stare decisis gives stability and certainty to our case law, conditions which are indispensable to any well-ordered system of jurisprudence. Ross v. Giardi, 237 Conn. 550, 554-55 (1996). We again state 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; see also Agosto, supra.

In further support of his appeal, the claimant argues that it was error to find that the claimant was no longer temporarily totally disabled in November of 1993. 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).

In the instant case, the trial commissioner concluded that the claimant’s total disability ceased on November 8, 1993. This determination is supported by the evidence in the record, including the claimant’s own testimony. As the record amply supports the factual findings and conclusions of the commissioner, we will not disturb them. Fair, supra.

Finally, we will address the claimant’s Motion to Submit Additional Evidence in which the claimant seeks to present a report by Dr. Saporito dated November 14, 1994, regarding the claimant’s permanent partial impairment. The admissibility of additional evidence is controlled by Administrative Regulations § 31-301-9 which states that additional evidence will be admitted if such evidence is material and if there were good reasons for failure to present it at the time of the proceedings before the trial commissioner. The evidence must not only be unavailable at the time of the proceedings, but must also be undiscoverable with due diligence. Crouse v. A.A.I.S., Inc., 3797 CRB-3-98-4 (June 16, 1999) (citing Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 550 CRD-7-87 (Dec. 1, 1988)). Here, the additional evidence was discoverable at the time of trial and the alleged reason for the failure to present this evidence at the time of trial being inadvertence, the claimant’s Motion to Submit Additional Evidence is denied. We note that even if this report had been admitted, it was nevertheless the trial commissioner’s prerogative to rely upon the opinion of Dr. D’Angelo, who found no permanent impairment.

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 reiterate my view regarding a trial commissioner’s examination, as set forth in my concurrence in Agosto v. Bridgeport, 3967 CRB-4-99-1 (April 12, 2000). As explained in that concurring opinion, “(a)lthough 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, supra, (emphasis added). Because the trial commissioner is the ultimate finder of fact, and because the language of § 31-294f does not require the commissioner to articulate a reason for disregarding the opinion of the commissioner’s examiner, I would thus not require a trial commissioner to provide a reason for not following the opinion of a trial commissioner’s examiner.