CASE NO. 4025 CRB-02-99-04
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 15, 2000
FIRST NATIONAL STORES
SECOND INJURY FUND
The claimant was represented by Warren Miller, Esq., Law Offices of Warren Miller, One Union Plaza, P.O. Box 116, New London, CT 06320-0116.
The respondents were represented by Margaret McGrail, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
The Second Injury Fund was represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the March 31, 1999 Finding and Dismissal of the Commissioner acting for the Second District was heard December 3, 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.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the March 31, 1999 Finding and Dismissal of the Commissioner acting for the Second District. In that decision the trial commissioner found that the claimant sustained a compensable injury on December 28, 1957 which left her with a sedentary work capacity. The trial commissioner further found that although the claimant was totally disabled, her condition was caused by her advanced age and by numerous injuries, illnesses and diseases which were not related to her compensable injury. In support of her appeal, the claimant contends that the trial commissioner erred in denying the claimant’s Motion to Correct.
The trial commissioner found the following relevant facts. On December 28, 1957, the claimant injured her back while working for the respondent employer. A voluntary agreement was approved on April 10, 1958. The claimant’s treating physician, Dr. Glenney, testified that the claimant had a sedentary work capacity for many years after the December 1957 date of injury. The claimant was temporarily totally disabled from November 11, 1958 until January 4, 1960, and underwent back surgery on May 27, 1959. On January 4, 1960, Dr. Glenney released the claimant to return to work with some restrictions, and the claimant worked until June 13, 1960 at which time she suffered a “flare-up” of her back pain which prevented her from continued work. The claimant has not worked since June 13, 1960. The trial commissioner noted that no hearings were requested or held for many years.
The claimant sought temporary total disability benefits from June 13, 1960 to the present.1 Further surgeries were performed on the claimant’s back on October 19, 1960 and September 1, 1972, and following those surgeries the claimant developed problems controlling her urine and bowels. During the formal hearing, the claimant contended that she has been totally disabled and unemployable continuously since June 13, 1960 as a result of back pain, incontinence, and bowel problems. According to Dr. Glenney, the claimant could perform only sedentary work of a limited type. (Findings ¶ 22 and 23; citing Depo. of Dr. Glenney at p. 8 and 23). Dr. Glenney, in a report dated January 12, 1987, opined that strictly from the assessment of the claimant’s physical disability, she did have some work capacity at very sedentary jobs. (Finding ¶ 24; citing Exh. 102). An independent medical examination of the claimant was performed by Dr. Druckemiller on October 15, 1998, who agreed with Dr. Glenney that the claimant’s work-related injury left her with a sedentary work capacity.
The trial commissioner further found that Dr. Glenney did not examine the claimant between 1991 and 1996. He “expressed amazement at the number of medical problems and injuries that the claimant had suffered that are unrelated to the December 28, 1957 date of injury.” (Finding ¶ 27). Specifically, following the 1957 injury, the claimant was injured in a head-on motor vehicle accident in 1977; underwent stomach and intestinal surgery; was hit by a piece of furniture which fell on her; was involved in another motor vehicle accident in 1991; fell and injured her ankle in 1983; suffered a stroke; underwent cataract surgery of both eyes in 1994; fell in March of 1997; and has a degenerative spur in her cervical spine unrelated to her 1957 injury. The trial commissioner concluded that while the claimant is totally disabled, her disability is the result of her advanced age and numerous illnesses, injuries, and diseases rather than her work injury.
Turning to the claimant’s appeal, we remind the parties of our standard of review regarding the factual findings of a trial commissioner, and the denial of a Motion to Correct. “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), citing Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997) and Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). On review of the denial of a Motion to Correct, 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. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion to Correct also may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).
Whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Rhodes v. Bourdon Forge Company, Inc., 3720 CRB-2-97-11 (Oct. 13, 1998); Fusciello v. Ronnie Demeo, Inc., 3406 CRB-8-96-8 (Feb. 4, 1998). Similarly, the question of whether a claimant has a light duty work capability is a factual decision for the commissioner. Fusciello, supra. 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). His conclusions must stand unless they result from an incorrect application of the law to the facts found, or from an illegally drawn inference from the subordinate facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
In support of her appeal, the claimant argues that the trial commissioner erroneously denied her Motion to Correct. The crux of the claimant’s appeal is her opposition to the trial commissioner’s finding that the claimant’s treating physician, Dr. Glenney, opined that the claimant had a sedentary work capacity. Specifically, the claimant contends that although Dr. Glenney stated that the claimant had a sedentary work capacity, he later clarified that statement to indicate that the claimant was unemployable since June 13, 1960. The report of Dr. Glenney dated January 12, 1987, stated, in pertinent part, as follows:
Strictly from the assessment of her physical disability she would have been able to carry out very sedentary jobs throughout the years since this injury occurred and since the assignment of a 35% permanent partial disability. Those jobs would necessarily have been very sedentary and avoided stress to the low back. Ideally they would have permitted changes in body posture through the work day and avoided lifting in excess of 10 lbs. of weight and avoided off balance lift[ing] or frequent bending. The patient however had no skills to permit her to find such work and she has now attained the age where she would not be employable.
(Respondents’ Exh. 102).
In his deposition, Dr. Glenney indicated that the claimant was capable of sedentary work, but that due to her age and lack of skills he did not feel that she could find such work. (3/21/97 Depo. at p. 23). We find no error in the trial commissioner’s conclusion that the claimant was not temporarily totally disabled, as the record supports the finding that the claimant had a sedentary work capacity. The trial commissioner was not required to accept Dr. Glenney’s opinion that the claimant was not employable. See Fusciello, supra. We note that whether the claimant was temporarily partially disabled and whether she adequately pursued light duty employment was not an issue at the formal hearing.
In further support of her appeal, the claimant argues that there were periods of hospitalization for which the claimant is entitled to receive temporary total disability benefits. However, at the formal hearing the claimant did not testify regarding these alleged dates of disability. The burden of proof was on the claimant to establish that she was temporarily totally disabled due to the compensable 1957 injury. See Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42 (1996). It was within the discretion of the trial commissioner to conclude that she had not met her burden of proof regarding total disability.
In further support of her appeal, the claimant argues that it was error for the trial commissioner to make a finding that hearings were not requested or held for many years, because said finding is irrelevant and evidence was not presented on the issue. We find no error, as it was within the discretion of the trial commissioner to take administrative notice of prior hearings. See § 31-298, see also Saleh v. Poquonock Giant Grinder Shop, 4005 CRB-1-99-3 (March 13, 2000). In Saleh, supra, the board found no error in the trial commissioner’s taking administrative notice that prior hearings had been held on a particular issue. The board explained that although the general rule is that a trial commissioner should not review notes from a prior informal hearing, there was no error where the trial commissioner merely referred to the fact that these hearings had been held.
Finally, we will address the claimant’s contention that the trial commissioner took administrative notice of a Finding and Award issued on October 3, 1969, and that pursuant to that decision the claimant is entitled to ongoing benefits for temporary partial disability. The trial commissioner in the instant case noted that a Finding and Award was issued on October 10, 1958 (Finding ¶ 11), but did not make a finding regarding the October 3, 1969 award. In the October 3, 1969 Finding and Award, a commissioner found that extensive compensation benefits had been provided to the claimant, but that compensation for certain periods of incapacity were at issue between the parties. Furthermore, in the October 3, 1969 decision the commissioner found that the claimant’s temporary total disability had terminated, that the claimant would need to demonstrate a diligent work search, and that further proceedings would be required to obtain testimony from the claimant regarding a work search. We thus disagree with the claimant’s argument that the October 3, 1969 Finding and Award provided the claimant ongoing temporary partial benefits.
In the instant case, the trial commissioner’s findings and conclusions are fully supported by the evidence in the record, and thus may not be disturbed. See Fair, supra.
The trial commissioner’s decision is affirmed.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.
1 In this appeal the claimant is not pursuing a claim for temporary total disability benefits prior to June 13, 1960, as represented by her legal counsel at oral argument. BACK TO TEXT