State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Carlson v. BIC Corporation

CASE NO. 4364 CRB-3-01-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 29, 2002

ADRIANA CARLSON

CLAIMANT-APPELLEE

v.

BIC CORPORATION

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Eugene Skowronski, Esq., Law Offices of Eugene Skowronski, 200 Division Street, Ansonia, CT 06401.

The respondents were represented by James Sullivan, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the February 15, 2001 Finding and Award of the Commissioner acting for the Third District was heard September 14, 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 respondents have petitioned for review from the February 15, 2001 Finding and Award of the trial commissioner acting for the Third District. In that decision, the trial commissioner found that the claimant suffered from cervical dystonia/torticollis, which is an abnormal involuntary muscle dysfunction of the head and neck, as a result of the repetitive work which she performed for the respondent employer. The trial commissioner concluded that the claimant was temporarily totally disabled as of July 21, 1992, and awarded ongoing benefits pursuant to § 31-307. In support of their appeal, the respondents contend that videotapes presented at the formal hearing starkly contrast the claimant’s claim of total disability, and thus argue that the trier erred in finding the claimant to be totally disabled. The respondents further contend that the trial commissioner was required to limit the award of temporary total benefits to the date of the last formal hearing.

We will first consider the respondents’ contention that the videotapes presented by the respondents at the formal hearing demonstrate that the claimant “dramatically exaggerates her physical disability.” Respondents’ Brief, p. 4. The respondents argue that “no reasonable person viewing the evidence in the videotape could conclude that the Claimant’s presentation of her disability at the hearing and to her doctors is valid.” Id., p. 4-5. While we appreciate that videotapes such as those presented by the respondents in this case may sometimes cast doubt upon a claimant’s credibility, and may indeed undermine a physician’s opinion which is based upon such a claimant’s subjective complaints, here the trial commissioner specifically addressed the issue of the apparent discrepancy in the claimant’s alleged physical condition as shown in the tapes.

In his findings, the trial commissioner found that the respondents took various video surveillance tapes of the claimant in 1992, 1993, 1996 and 1997. In these tapes, the claimant is engaged in various physical activities such as walking and driving. Findings, ¶ 125. The trial commissioner further found that these tapes were viewed by Dr. Marek, Dr. Pavlo, and Dr. Levy, and that they did not change their opinion that the claimant was totally disabled. In fact, the trial commissioner made quite detailed findings regarding the reasons proffered by Dr. Marek and Dr. Levy for not altering the opinion that the claimant was totally disabled despite the activities shown on the videotapes. See Findings, ¶ 128 and 130.

Whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. LaPierre v. UTC/ Pratt & Whitney, 4305 CRB-8-00-10 (Oct. 23, 2001). The trial commissioner acts as the finder of fact and the arbiter of the credibility of all witnesses, both lay and expert, whether or not their testimony is expressly contradicted. Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000); Garcia v. Bridgeport, 3595 CRB-4-97-4 (June 8, 1998). In the instant case, the claimant’s claim regarding total disability involved both medical evidence and the credibility of the claimant, and required the trial commissioner to weigh all of the evidence.

We conclude that it was within the discretion of the trial commissioner, as the finder of fact, to accept the opinions of Drs. Marek, Pavlo, and Levy that the claimant was totally disabled. Under the circumstances of this case, we cannot conclude as a matter of law that the videotapes required the trier to deny the claimant’s request for total disability benefits under § 31-307. As the evidence in the record fully supports the trial commissioner’s findings and conclusions regarding the claimant’s alleged total disability, it must stand. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In further support of their appeal, the respondents contend that a trial commissioner does not have the authority to award benefits for temporary total disability beyond the date of the last evidentiary hearing. We addressed this issue in Morris v. A & A Acoustics, 3429 CRB-7-96-9 (Aug. 8, 1997) in which we concluded that a trial commissioner has the discretion to award continuing temporary total disability benefits, which discretion has long been utilized by trial commissioners in Connecticut. Specifically, in Morris we explained that our Supreme Court has repeatedly recognized that a trial commissioner has the discretion to award ongoing benefits for temporary total disability beyond the date of the last evidentiary hearing. Morris, supra, citing Morisi v. Ansonia Mfg. Co., 108 Conn. 31 (1928); Reilley v. Carroll, 110 Conn. 282 (1929); English v. Manchester, 175 Conn. 392 (1978).

Furthermore, in Morris, the board explained that the “law requires that the employer will be monitoring the status of the case concerning the employee’s incapacity status, and it is presumed that the employer would know when the employee will be returning to work.” Morris, supra, citing Platt v. UTC/Pratt & Whitney Aircraft Division, 3 Conn. Workers’ Comp. Rev. Op. 3, 9, 164 CRD-6-82 (Aug. 16, 1985). “At that point, it becomes incumbent upon the respondent to file a Form 36. Indeed, attending physicians in workers’ compensation cases have an ongoing obligation to assess the claimant’s ability to return to work and to report such information to the employer or its insurer.” Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998), citing Platt, supra, 9, fn. 8; § 31-279-9. “This practice clearly supports the humanitarian purpose of the Workers’ Compensation Act by allowing trial commissioners to award ongoing benefits where the medical evidence indicates that a claimant will continue to be temporarily totally disabled after the close of the last evidentiary hearing.” Hidvegi, supra.

The trial commissioner’s decision is affirmed.

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

Workers’ Compensation Commission

Page last revised: December 17, 2004

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