Figliola v. Ogden Services

The claimant was represented by Norman Voog, Esq., 90 Grove Street, Ridgefield, CT 06877.

The respondents were represented by Kevin Blake, Esq., Cotter, Cotter & Sohon, L.L.C., 500 Boston Post Road, Milford, CT 06460.

This Petition for Review from the March 25, 1999 Finding and Award of the Commissioner acting for the Seventh District was heard November 19, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the March 25, 1999 Finding and Award of the Commissioner acting for the Seventh District. He contends on appeal that the trier erred by finding that he had failed to demonstrate continuing total disability. We affirm the trial commissioner’s decision.

The claimant sustained a compensable injury to his lower back on January 29, 1996, while lifting a box. The trial commissioner found that he had no history of prior back injuries, but has had other unrelated medical problems during the last few years, including hip replacement surgery. The claimant contends that he is in constant pain in his right low back area and that he also experiences frequent pain in his right thigh. He lives in New York, and has treated with New York doctors for his right hip and low back. They are of the opinion that the claimant is totally disabled due to his work-related injury.

The trier directed the claimant to submit to an examination by Dr. Rubinstein, a Connecticut doctor, who opined that he had reached maximum medical improvement and possessed a light work capacity. Dr. Schweitzer, the respondents’ independent medical examiner, also identified a light work capability. The claimant has not rejoined the work force since the date of his injury. The trier concluded that the claimant had not shown that he was totally disabled by a preponderance of medical evidence, and declined to set aside a Form 36 that had previously been approved by another commissioner effective July 1, 1998. The claimant has appealed that decision to this board.

On appeal, the claimant argues that the commissioner erroneously relied on “old and stale medical reports,” i.e., the July 8, 1997 examination by Dr. Rubinstein and the January 13, 1997 examination by Dr. Schweitzer, rather than the more contemporaneous records of Dr. Kramer, who determined that the claimant was unfit to return to work on November 17, 1997, June 18, 1998, and January 28, 1999. Brief, 9. The claimant states that, “On the basis of these facts, there is no relevant or material medical evidence in the record upon which the Commissioner could make a valid determination of work capacity as of July 1, 1998.” Id., 13. The respondents, meanwhile, reply that the trial commissioner made a permissible decision regarding evidentiary credibility in the face of conflicting medical opinions. See Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 349 (1999), cert. denied, 251 Conn. 916 (1999). They maintain that this board should affirm his decision.

We first note that the claimant did not file a Motion to Correct the trier’s findings. Pursuant to Admin. Reg. § 31-301-4, “If the appellant desires to have the finding of the commissioner corrected he must . . . file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material . . . .” Such a step is necessary because the trial commissioner is the sole arbiter of evidentiary credibility. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). He alone has the authority to decide which, if any, medical reports in the record are the most persuasive, and to decide whether a claimant is temporarily totally disabled. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Garcia v. Bridgeport, 3595 CRB-4-97-4 (June 8, 1998). By failing to present his requested corrections to the trier of fact, the claimant has essentially limited the scope of our review to the factual findings in the record, absent a clear abuse of the trier’s discretion. Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 264, 1790 CRB-3-93-8 (April 18, 1995). No such abuse of discretion is apparent to this board.

Here, the trial commissioner rejected the testimony of Dr. Kramer after noting the contradictory opinions of Drs. Schweitzer and Rubinstein. As the trier of fact, he was entitled to accept or reject any medical opinion in evidence, even if it appeared to be uncontradicted. Tartaglino, supra; Jusiewicz, supra. Because the claimant has the burden of proving that he is totally disabled, it is necessary for him to offer medical evidence that the trier finds persuasive. If the trial commissioner does not find such evidence credible, the claimant cannot prevail on his claim. On appeal, this board cannot second-guess the impressions drawn by the commissioner. We may only decide whether the trier’s decision has resulted from an incorrect application of the law to the subordinate facts, or from an inference illegally or unreasonably drawn from them. Tartaglino, supra, 193.

The trier did not explicitly rule that the respondents’ doctor and the § 31-294f examiner were more credible than the claimant’s doctor; rather, he simply stated that the claimant had not offered sufficient proof to establish that he was still totally disabled. However, the reports of Drs. Rubinstein and Schweitzer support this decision, and there is no defect intrinsic to those documents that would prevent the trial commissioner from adopting their assessment of the claimant’s work capacity. For example, Dr. Schweitzer testified that the claimant could perform light duty work as of January 13, 1997, and that his residual permanent disability was related to a natural degenerative process rather than his compensable injury. Respondent’s Exhibit 1, 10-11. The trial commissioner would have been perfectly within his right to rely upon this testimony, and to reject the subsequent reports of Dr. Kramer that were offered to establish that the claimant was totally disabled at a later date because of his compensable injury. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). As this board must interpret the trier’s findings with the goal of sustaining his conclusion in light of the evidence, rather than retrying the case de novo on review, we must acknowledge that his legal conclusions are supported by the record here. See Tartaglino, supra, 196.