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Azzarito v. State of Connecticut/Office of the County Sheriff

CASE NO. 4173 CRB-7-00-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 26, 2001

ARTHUR AZZARITO

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/OFFICE OF THE COUNTY SHERIFF

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Kenneth Taylor, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

The respondent was represented by Michelle Truglia, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 4, 2000 Finding and Award of the Commissioner acting for the Seventh District was heard January 12, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the January 4, 2000 Finding and Award of the Commissioner acting for the Seventh District. It contends on appeal that the trier erred by awarding the claimant benefits pursuant to § 31-307 during an unsubstantiated period of total disability. We find sufficient evidence in the record to affirm the trial commissioner’s decision.

The claimant was employed by the State of Connecticut as a Deputy Sheriff on June 15, 1992. While on assignment at the Danbury Courthouse, he suffered an injury to his low back. He received medical treatment for his injury, and reached maximum medical improvement in 1994 with a 30% permanent partial disability to his back. The claimant suffered a recurrence of the injury in 1996, and has maintained little or no gainful employment since August 1996. These facts are not disputed.

The proceedings below concerned the claimant’s request for temporary total disability benefits from August 22, 1996 through July 8, 1997, and partial disability benefits from February 3, 1998 to March 2, 1999. The commissioner found that Dr. Kaye’s office notes of August 27, 1996 pronounced the claimant totally disabled “from August 22, 1996” due to severe leg and back pain. Findings, ¶ 4. The claimant was supposed to return to Dr. Kaye’s office three weeks later, but instead waited until May 20, 1997 to visit the doctor again. Despite the claimant’s delay in returning for treatment, the trial commissioner concluded that this medical opinion established the claimant’s total disability status through May 20, 1997. The commissioner also awarded the claimant 25 weeks of temporary partial disability benefits spanning the period between February 3, 1998 and March 2, 1999. The state now asserts on appeal that the trier erred regarding the length of the total disability portion of his award.

The appellant’s argument is not complex. With the exception of claimants who are determined to be totally disabled on a permanent basis as per § 31-307(c), a claimant’s total disability status is a matter of continuing proof for the period of disability claimed. Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42 (1996); Brown v. State/Dept. of Mental Health and Addiction, 4053 CRB-2-99-5 (July 27, 2000). The respondent observes that the claimant experienced a five-day period of low back pain beginning on August 22, 1996, which led him to visit Dr. Kaye. Respondent’s Exhibit 1; Claimant’s Exhibit A. Dr. Kaye’s August 27, 1996 office note notes severe pain, and says that the claimant “should be considered unemployable from last Thursday [August 22]. His next visit in 3 weeks.” Id. The claimant did not return until May 1997, at which time his situation appeared “essentially unchanged” to the doctor. On that point, the respondent objects that “neither Dr. Kaye, nor anyone else, has any way of knowing what condition the claimant was in during the nine month period preceding Dr. Kay[e]’s May 20, 1997 assessment. . . . If the claimant’s condition was truly unchanged . . . it is a mystery why the claimant did not continue to seek treatment from Dr. Kaye until his symptoms resolved themselves.” Brief, p. 3. In short, the respondent claims that there was insufficient evidence to support a nine-month award of total disability benefits.

The claimant, meanwhile, correctly observes that the trial commissioner is the finder of fact in a workers’ compensation case, which role vests him with sole authority to determine the credibility of all evidence and testimony, including medical reports. Kisson v. Shawmut National Bank, 4188 CRB-5-00-2 (March 16, 2001); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). If the trier is persuaded by a particular doctor’s opinion, this board may not disturb his assessment of the facts on review. Id.; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The claimant here argues that there is a medical report stating that his condition did not change between August 27, 1996 and May 20, 1997. No evidence was introduced to dispute this. He protests that, rather than asking the claimant to have his medical condition reviewed by an independent examiner in 1996 or 1997, the respondent chose not to contest disability until it was too late for the claimant to obtain a contemporaneous report that might refute its contention. “[A]ll treatment [through August 27, 1996] had been ineffective. If Mr. Azzarito continued to treat with no improvement, the State would have characterized that treatment as palliative treatment. Since Mr. Azzarito did not seek treatment during that period, they assumed he was fine, despite no evidence to support their conclusion. Either way, Mr. Azzarito could not have satisfied the State.” Claimant’s Brief, pp. 4-5.

Proving total disability is a burden that rests on the claimant, rather than a presumption that the respondent is obliged to disprove. Cummings, supra, 41-42; Brown, supra. Theoretically, therefore, an employer may successfully defend such a claim by mere inaction; Dengler v. Special Attention Health Servs., Inc., 62 Conn. App. 440, 454 (2001); even if we disregard for the moment a trier’s discretion to ignore any evidence he finds unpersuasive, whether or not it is expressly contradicted. See Pallotto, supra. However, an employer takes a practical risk when it rests its entire case on the assumption that a claimant has not adhered to some hypothetical minimum required frequency for updates to medical reports that reaffirm his total disability status. To illustrate, we have held that a single medical report describing a claimant as “totally disabled” could not sustain a 55-month award of total disability without any corroborating evidence. Brown, supra. We have also upheld a finding of total disability through the date of the formal hearing where a claimant had not seen his doctor for a year and eight months. Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 100, 725 CRD-6-88-2 (Oct. 20, 1989) (doctor testified that he had “every reason based on probabilities to assume that [claimant was] the same”). There is simply no hard and fast rule as to the length of time that may elapse between doctor’s visits in a total disability case; many other factors may also govern a trier’s decision.

Here, the full history of Dr. Kaye’s treatment of the claimant helps to place this nine-month disability period into context. Dr. Kaye’s medical records show that he began treating the claimant in June 1992, when back pain began to interfere with his ability to work. The claimant has treated regularly with Dr. Kaye since then, as pain has often recurred in his back and left leg despite occasional epidural injections (which have provided him some temporary relief) and some periods of improvement. Claimant’s Exhibit A. By August 1994, the doctor thought that the claimant had reached maximum medical improvement with a 35% permanent partial disability. Id., August 19, 1994 office note. In April 1996, after a two-year hiatus in treatment, the claimant returned, complaining of a gradual and progressive onset of pain in his left thigh and numbness in his left calf and foot. His back movement was very limited in all directions, and Dr. Kaye kept him out of work for one week. The pain continued to worsen in April, then improved with rest by May 14, 1996. He was told to return to his usual duties on June 1. On June 4, 1996, Dr. Kaye recommended driving restrictions prohibiting a one-way trip of over 30 minutes. The claimant again returned on August 27, 1996, having suffered five days of low back and left low extremity pain.

At that time, the claimant informed Dr. Kaye that mandatory training courses were now being required for his job, and that his employer would not allow him to take hand-cuffing training (despite his willingness to do so) because of a fear that his back injury would recur. Because the claimant could not take the class, he was not allowed to work, and had been idle since July 1, 1996. The doctor considered him to be currently unemployable, and recommended an epidural steroid injection and a renewal of his Percocet prescription. As stated above, the claimant was supposed to return in three weeks, but failed to do so. In his May 20, 1997 office note, the doctor stated that the situation regarding the claimant’s back had not changed (he continued to have episodic bouts of pain when physically active), and that he had remained out of work for the reasons explained in his August 27, 1996 note. Two months later, the doctor wrote that the claimant was feeling less back discomfort, and wrote a note suggesting that he be allowed to participate in the hand-cuffing course. By February 3, 1998, the claimant’s pain was subsiding, and Dr. Kaye consented to his returning to work.

This history supports the notion that Dr. Kaye was quite familiar with the claimant’s condition before and after the nine-month period in question, and that his opinion regarding the claimant’s status during that time could be considered reliable. Moreover, the claimant testified that he felt it would be useless to see Dr. Kaye during that nine-month disability period due to the fact that his prescribed epidural injection was being questioned by the respondent, and he understood the doctor to be of the opinion that no new course of treatment such as surgery was yet advisable. May 6, 1999 Transcript, p. 31. He stated that experience had taught him to relieve his pain by taking painkillers and lying flat on his back until the discomfort went away. Id. Though the trier did not cite the claimant’s testimony in his findings, we are required to take note of all corroborative evidence in the record when reviewing a trial commissioner’s findings. See Keenan v. Union Camp Corp., 49 Conn. App. 280, 285-86 (1998) (no requirement that the trier recite every piece of credible evidence or testimony that contributed to rendering of decision). We also observe that the respondent did not depose Dr. Kaye in order to question his medical opinions. Rather, we are asked to infer that a weak spot in the claimant’s medical history legally amounts to a gaping hole.

Though this case may not be as strong as others we have reviewed, the entirety of this record contains sufficient evidence upon which a reasonable commissioner could base a decision that the claimant was totally disabled from August 27, 1996 to May 20, 1997. As it is not our place to second-guess the trier’s findings, we must defer to that decision on appeal. Webb, supra.

The trial commissioner’s decision is accordingly affirmed. Insofar as any benefits due pending appeal have not yet been paid, interest is hereby awarded pursuant to § 31-301c(b) C.G.S. We do recall, however, that the trier’s award and his August 17, 2000 Articulation indicated that the claimant’s compensation rate was yet to be determined.

Commissioners George A. Waldron and Ernie R. Walker concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

Page URL: http://wcc.state.ct.us/crb/2001/4173crb.htm

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