CASE NO. 4381 CRB-3-01-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 1, 2002
PRATT & WHITNEY
The claimant was represented by Richard Goldblatt, Esq., Goldblatt, Kuselias & Rashba, 60 Washington Avenue, Hamden, CT 06518.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.
This Petition for Review from the April 4, 2001 Finding Re: Approval of Form 36 of the Commissioner acting for the Third District was heard November 16, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the April 4, 2001 Finding Re: Approval of Form 36 of the Commissioner acting for the Third District. In that decision, the trial commissioner found that the claimant had a work capacity, and thus granted the respondents’ Form 36 effective January 5, 1999. The claimant’s sole argument on appeal is that the trial commissioner erred by relying upon the medical opinion of Dr. Luchini because, the respondents argue, Dr. Luchini’s opinion was based upon misleading surveillance videotapes of the claimant.
Initially, we note that the respondents have filed a Motion to Dismiss the claimant’s appeal due to the claimant’s late filing of Reasons of Appeal. Generally, this board has the discretion to dismiss an appeal when the appellant fails to file documents in a timely fashion. Norton v. James Fleming Trucking, Inc., 15 Conn. Workers’ Comp. Rev. Op. 472, 474, 2119 CRB-1-94-8 (Sept. 16, 1996). As a dismissal under these circumstances is discretionary, and as there appears to have been no prejudice, we deny the Motion to Dismiss.
We now turn to the merits of this case. The April 4, 2001 Finding Re: Approval of Form 36 sets forth numerous findings of fact. We note that extensive evidence, including testimony from the claimant and from expert witnesses, was presented at four formal hearings. The trial commissioner found that the claimant commenced employment with the respondent employer in 1963, and had a history of numerous injuries throughout his employment, including a compensable January 9, 1987 left knee injury; an October 4, 1988 low back injury; and bilateral carpal tunnel syndrome for which the claimant underwent several surgeries between 1990 and 1996. Regarding the carpal tunnel condition, the claimant was last seen by his treating physician in 1996. Regarding the lower back, no surgery had ever been performed and he was not undergoing any treatment. Regarding the claimant’s left lower extremity injury, the claimant was treated by Dr. Luchini, a board certified orthopedic surgeon. In addition to these injuries, the claimant also suffered a non-occupational injury as a child involving the traumatic amputation of his right foot, for which the claimant wears a prosthesis.
The trial commissioner reviewed the claimant’s education, training, and experience, finding that although the claimant attended school to the eighth grade, he underwent extensive training with the respondent employer. Specifically, in 1968 the respondent employer sent the claimant to school where he was taught to run lathes and to read blue print operating sheets, among other jobs. The claimant went to school for roughly half a year, with training which involved classroom education about operation sheets, tolerance on parts, and which required the use of mathematics. Subsequently, the claimant worked as a leader in the grinding department where he was required to do administrative paperwork. Additionally, the claimant testified that he learned to read blueprints and that he supervised other individuals at work.
In 1997, the claimant was working in a light duty capacity based upon restrictions from Dr. Luchini. The claimant last worked on December 17, 1997, at which time he said that he could not work anymore. In 1998, the claimant received temporary total disability benefits as a result of his 1987 left knee injury. At the request of the respondents, an independent medical examination was performed on December 21, 1998 by Dr. Fisher, a board certified orthopedic surgeon, who opined that the claimant was capable of sedentary employment. Accordingly, the respondents filed a Form 36 on January 5, 1999 seeking to terminate ongoing temporary total disability benefits.
Dr. Luchini, the claimant’s treating physician, under whose care the claimant underwent left knee surgeries in 1994, 1996, and 1998, initially opined that the claimant was totally disabled. Specifically, in a report dated December 7, 1998, Dr. Luchini opined that although the claimant was capable of light or limited duty pertaining to his left lower extremity injury, the claimant was nevertheless totally disabled due to a “combination of problems.” Findings, ¶ 33.
During the formal hearings in the instant matter, surveillance evidence was placed in the record regarding the claimant’s activities during the period between June of 1997 and May of 1999. The surveillance videotapes showed the claimant on June 16, 1997, pushing his car out of his garage when it was not running, and also showed the claimant on the ground doing mechanical work on his car. On cross-examination the claimant conceded that he was fixing a hose on his automobile, and also conceded that he pushed his car out of his garage by himself. The videotape also shows him raking his lawn, taking out the trash, and moving an old cabinet. Videotape taken on May 12, 1999 shows the claimant wearing a dust mask, carrying cinderblocks, carrying 4x4x8 foot long pieces of wood, painting a stockade fence, and moving sections of the stockade fence. Additionally, videotape taken on May 13, 1999 shows the claimant walking in a smooth manner. The claimant acknowledged that the activities shown on the videotapes were accurate, that he was wearing a dust mask because he was sanding wood, and that he cuts his own grass with a pull-start lawn mower.
After having issued his reports indicating that the claimant was totally disabled, Dr. Luchini was shown the surveillance tapes. Dr. Luchini testified at his deposition that these tapes demonstrate that the claimant has a work capacity and is not totally disabled. In support of his appeal, the claimant contends that Dr. Luchini was mislead by the videotapes, because said tapes were edited and condensed to show the claimant’s periods of activity. The claimant contends that the tapes show only approximately twenty-five minutes of activity on a given day, and that during the period that the claimant was not in site of the video camera it is not known what the claimant was doing. The claimant argues that during his deposition, Dr. Luchini indicated his understanding that the tapes showed that there were “several hours” of work activity “Jan. 18, 2000 Deposition of Dr. Luchini, p. 60-61”, whereas in fact the claimant argues that the tapes showed less than 20 minutes of physical activity on May 12, 1999 and showed fifteen minutes of physical activity on May 13, 1999.
This issue was addressed extensively during the formal hearing, including the following discussion when the vocational expert, Dr. Blank, was being questioned:
COMMISSIONER: Just so that we’re clear. Doctor Luchini isn’t here for me to ask and he’s using the term several hours. But I want to keep in context that the video that you saw, 50 minutes of activity, he could have done more or he could have stopped in between. We don’t know because we only have what we’re seeing on the video, is that correct? . . .
ATTORNEY GOLDBLATT: I think that the witness [Dr. Blank] testified that there was only 25 minutes of activity. I think the Commissioner’s question indicated that there was 50 minutes of activity.
COMMISSIONER: I’ll rephrase the question. You said there was 50 minutes of tape but there’s only 20 to 25 minutes of activity.
WITNESS: That’s correct.
“June 12, 2000 Transcript, p. 119-120.”
The trial commissioner continued to pose questions regarding the amount of activity depicted on the videotape, and Dr. Blank indicated that in his opinion it did not demonstrate a work capacity because the tape was limited as to what it showed, and did not show the claimant’s ability to work for an extended period of time. Id., 126-127.
During his deposition, Dr. Luchini testified that he had just that morning viewed the videotapes, and during the deposition the respondents’ attorney played portions of said tapes. “Jan. 18, 2000 Deposition of Dr. Luchini, p. 25-26.” During his questioning, Dr. Luchini again viewed the tapes and testified as he viewed them that the tapes showed the claimant lifting cinderblocks, moving his car, picking up 8 foot long pieces of wood, carrying portions of a stockade fence, painting a fence, and walking unassisted with a normal gait. Id., 25-35. After viewing these tapes, Dr. Luchini opined that the claimant had a limited work capacity. Id., 36. On cross-examination, Dr. Luchini was asked, “The videotape that you’ve been viewing, you understand that that’s a rather limited snap sho[t] of activity on the part of Mr. Henley?” and he replied, “That is correct, yes.” Id., 41. Additionally, Dr. Luchini indicated his understanding that the videotapes were limited in nature when he testified as follows: “ . . . Whether or not he could do that for an entire eight hour day certainly wasn’t demonstrated on that tape and I don’t think he could stand [or] walk for extended periods of time like a total of eight hours. I think he does have a certain amount of ability to stand and walk each and every day. . . .” Id., 45.
In the instant case, the trial commissioner’s granted the Form 36 effective January 5, 19991 based upon the determination that the claimant was no longer totally disabled. This determination was a question of fact for the trial commissioner, as we have repeatedly held that whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). The power and duty of determining the facts rests on the commissioner as the trier of fact, and “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
In concluding that the claimant was not totally disabled, the trial commissioner considered conflicting evidence. Clearly, the trial commissioner considered the claimant’s argument that Dr. Luchini misinterpreted the videotapes. Nevertheless, the deposition of Dr. Luchini indicated his opinion that these tapes showed a work capacity, and indicated that he understood that the tapes were limited in what they showed. It was within the discretion of the trial commissioner to accept the opinion of Dr. Luchini that the claimant had a limited work capacity. As the trial commissioner’s conclusion that the claimant was no longer totally disabled is fully supported by the record and by the findings, we may not disturb it. Fair, supra; see also Norwood v. Custom Design Services, Inc., 3844 CRB-7-98-6 (Nov. 2, 1999).
The trial commissioner’s decision is affirmed.
Commissioners George A. Waldron and Ernie R. Walker concur.
1 We have repeatedly held that a respondent must file a Form 36 before discontinuing or reducing either temporary total or temporary partial disability benefits, and that the earliest date that a termination of benefits may become effective is the date on which the Form 36 is filed. Hyde v. Stop & Shop Companies, 3728 CRB-4-97-11 (Feb. 18, 1999); Jones v. Maaco of Greater Bridgeport, 3634 CRB-4-97-4 (Aug. 5, 1998); Ryba v. West-Con, 3196 CRB-2-95-10 (Feb. 27, 1997). BACK TO TEXT