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Minck v. Truegreen Chemlawn

CASE NO. 4003 CRB-04-99-03

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 18, 2000

CHARLES MINCK

CLAIMANT-APPELLANT

v.

TRUEGREEN CHEMLAWN

EMPLOYER

and

RISK ENTERPRISE MANAGEMENT

INSURER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Scott McCarthy, Esq. and Jennifer Collins, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

The respondents were represented by John Greiner, Esq., Murphy & Beane, Two Union Plaza, P.O. Box 590, New London, CT 06320.

This Petition for Review from the March 11, 1999 Finding and Dismissal of the Commissioner acting for the Fourth 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 11, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District. In that decision, the trial commissioner concluded that the claimant was not temporarily totally disabled for the period from June 21, 1996 through November 20, 1996. In support of his appeal, the claimant argues that the trial commissioner erred by not finding him to be temporarily totally disabled in accordance with his treating physician’s written opinion.

The trial commissioner found the following facts, noting that the parties agreed upon all pertinent facts except for the issue of whether the claimant was totally disabled from June 21, 1996 through November 20, 1996. No testimony was presented at the formal hearing. The trial commissioner found that the claimant sustained a compensable injury to his back, and that a voluntary agreement was approved for 44.88 weeks of payments for a twelve percent permanent partial disability. These 44.88 weeks of benefits were paid from April 24, 1996 through March 3, 1997.

The trial commissioner further found that by a letter dated April 30, 1997, the claimant’s treating physician, Dr. Craig, “unequivocally stated that the Claimant was temporarily totally disabled from June 21, 1996 through November 20, 1996.” (Finding ¶ 5). The trial commissioner noted that the office notes of Dr. Craig (which were attached and made part of Claimant’s Exh. A) regarding the February 20, 1996 visit were unclear regarding work capacity, but did indicate that the claimant had some work capacity. Furthermore, the office notes for June 21, 1996 and September 20, 1996 do not mention the claimant’s work capacity; while the office note for November 20, 1996 indicates that he “will allow him to perform work with limited duty.” (Findings ¶ 7 & 8).

Whenever a claimant asserts that he is totally incapacitated, the burden of proving such a disability falls upon him. Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 42 (1996); Curtiss v. State of Connecticut/Dept. of Mental Retardation Region 2, 3220 CRB-6-95-11 (Aug. 20, 1997). A claimant may reach maximum medical improvement, have a permanent partial impairment, and be temporarily totally disabled all at the same time. McCurdy v. State, 227 Conn. 261, 267-68 (1993). A claimant must persuade the trial commissioner that at least some of the evidence presented in support of his claim of continued total disability is credible and convincing. Curtiss, supra. As always, the trial commissioner is the finder of the facts and the judge of the credibility of the evidence, and the mere fact that a medical report appears to be uncontradicted does not render the medical opinion admitted or undisputed. Garcia v. City of Bridgeport, 3595 CRB-4-97-4 (June 8, 1998) (citing Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995)). Absent a clear abuse of discretion, this board cannot disturb a decision made by the commissioner regarding the appropriate weight to give the evidence. Jusiewicz, supra.

In the instant case, the trial commissioner found that Dr. Craig’s letter did “not rise to the level of a medical report being based on a reasonable degree of medical probability.” (Finding ¶ 10). However, it has repeatedly been held that no “magic words” are required in a medical diagnosis. O’Reilly v. General Dynamics Corp., Electric Boat Division, 52 Conn. App. 813, 818 (1999); see also Struckman v. Burns, 205 Conn. 542, 554-55 (1987). Accordingly, in this case, where the treating physician “unequivocally” opined that the claimant was totally disabled for the period in question, it was error to conclude that the opinion did not have the required “degree of medical probability.”

However, as stated above, the trial commissioner is the finder of the facts and the judge of the credibility of the evidence, and may choose not to follow a medical opinion where he finds that opinion is not credible or convincing.1 As it is not clear whether the trial commissioner based his decision on these grounds, we must remand this matter to the trial commissioner for an articulation of his decision.

This matter is remanded to the trial commissioner’s in accordance with the above.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 We note that in the instant case, the claimant offered only medical reports in support of his case, but did not testify in support of his claim. Thus, the trial commissioner was unable to ask any questions, or witness the demeanor of the claimant regarding his contention that he had been totally disabled during the period in question. BACK TO TEXT

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