State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Devanney v. Woodcock Refrigeration Co. et al.

CASE NO. 4403 CRB-8-01-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 29, 2002

MICHAEL DEVANNEY

CLAIMANT-APPELLEE

v.

WOODCOCK REFRIGERATION CO.

EMPLOYER

and

SENTRY INSURANCE

INSURER

RESPONDENTS-APPELLANTS

and

SOLO MECHANICAL MAINTENANCE

EMPLOYER

and

WAUSAU INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Morris Borea, Esq., Rome, McGuigan & Sabanosh, One State Street, Hartford, CT 06103-3101. Notice also sent to Richard J. Kenny, Esq., Kenny, O’Keefe & Usseglio, P.C., 21 Oak Street, Suite 208, Hartford, CT 06106.

The respondents Woodcock Refrigeration Co., Inc. and Sentry Insurance Co. were represented by Lynn Raccio, Esq., Law Offices of Murphy & Raccio, 1062 Barnes Road, Suite 110, P.O. Box 865, Wallingford, CT 06492.

The respondents Solo Mechanical Maintenance and Wausau Insurance were not represented at oral argument, and did not file any papers on appeal. Notice sent to the Law Offices of John F. Della Jacono, 639 Research Parkway, Meriden, CT 06450.

This Petition for Review from the May 23, 2001 Finding and Award of the Commissioner acting for the Eighth District was heard March 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents Woodcock Refrigeration Co. and Sentry Insurance Co. have petitioned for review from the May 23, 2001 Finding and Award of the Commissioner acting for the Eighth District. They contend on appeal that the trier erred by awarding the claimant temporary total disability benefits, and with regard to his findings concerning the severity of the pain that the claimant experiences in his feet and ankles as a result of his compensable injury, and the claimant’s loss of use of his lower extremities. We affirm the award of total disability benefits, though we do find error with regard to the trier’s finding that the claimant qualifies for permanent total disability benefits under § 31-307(c) C.G.S.

The trial commissioner found the following relevant facts. The claimant is a 1990 high-school graduate with a certificate from Technical Careers Institute in heating, ventilating and air conditioning technology. On January 10, 1992, he slipped off the roof of Highland Park Supermarket in Glastonbury while working as an apprentice for the respondent Woodcock Refrigeration Co., and injured his feet and ankles after falling 18-20 feet and landing on his heels. He initially treated with Dr. Ritland, who kept him out of work for some periods of time, and rated him with a 5% permanent partial disability of each foot in August 1994. Dr. Ritland also prescribed special insoles for the claimant’s shoes. The claimant continued his apprenticeship program while undergoing sporadic treatment for his injuries, which program he was able to complete. Despite continuing pain in his feet, he worked for several employers over the course of the next few years, including Solo Mechanical, during which term of employment he injured his left shoulder on January 26, 1996.

As the claimant’s foot pain worsened, he returned for further medical treatment in 1997. By then, Dr. Aron had taken over for the retired Dr. Ritland, and he referred the claimant to Dr. Gee, an expert in orthopedics, who saw the claimant on March 25, 1997. Dr. Gee assessed the claimant with “soft tissue crush injuries bilateral heels;” Claimant’s Exhibit A; and recommended injections and a change in the claimant’s orthotics that would better cushion his heels. In December 1997, the claimant was referred to Dr. Sullivan, who noted steady pain in both heels since the claimant’s injury, and found “exquisite tenderness” in all areas, with the left heel being worse than the right. Exhibit A, supra, December 12, 1997 report. There was also mention of ankle pain. Dr. Sullivan did not feel that the claimant’s heel pain would significantly improve, but he performed arthroscopic surgery on his left ankle on March 10, 1998, in order to repair a fracture. Dr. Santoro evaluated the claimant on January 21, 1999, and rated him as having a 50% impairment of both lower extremities. He opined that the claimant had a dystrophic profile, and suggested that he see Dr. Kemp for further pain management treatment in the form of a sympathetic block aid or an epidural injection. Dr. Sullivan stated on April 1, 1999, that he was in agreement with the opinion of Dr. Santoro. On the strength of Dr. Santoro’s report, a Form 36 was approved on March 1, 1999.

Dr. Sella then saw the claimant for a commissioner-ordered examination on August 5, 1999. He reported that the claimant was suffering from traumatic heel pad fasciitis, and osteochondritis of the ankle. He also identified complex regional pain syndrome (RSD). He took the position that the claimant had reached maximum medical improvement, with a 30% disability of each lower extremity. The claimant’s prognosis for pain relief or return to normal work activities was poor. He stated in both his deposition and his report that the claimant would be able to manage some type of sedentary work, however. Dr. Sullivan, meanwhile, continued to treat the claimant, and revised his recommendation regarding work capacity to limit the claimant to sedentary duty only with his feet in an elevated position. Exhibit A, December 10, 1999 report. He further clarified that the claimant could not travel more than 15 minutes to work each way, and that his amount of time at work would also be limited by discomfort. “I do know that he will need to take frequent breaks, at least every half hour and will need to have the ability to take off his shoes and perform foot and ankle massage, as well as walk with his crutches to relieve some of the acute discomfort that he gets with even sitting duty.” Id., December 27, 1999 report.

Hank Lerner, a vocational rehabilitation counselor, interviewed the claimant on December 29, 1999, and reviewed the medical records available on the claimant through January 24, 2000. He prepared a report dated February 21, 2000; Claimant’s Exhibit D; and testified at the July 14, 2000 formal hearing. After considering the claimant’s work history, education, current treatment and medications, subjective experience in regard to functional limitations, and daily activities, he opined that the claimant’s restrictions were so severe that it was improbable any employer would be able to reasonably accommodate the claimant’s needs. He did not perform any vocational evaluations in terms of fitness for specific jobs, as the claimant’s residual work capacity was too limited to justify a search for specific work.

Lerner explained that the claimant spends most of his day trying to find some relief from his pain through frequent postural changes, while trying to fit in a few activities like running a small errand or preparing lunch. July 14, 2000 Transcript, p. 16. At night, his pain prevents him from sleeping more than 20 minutes at a time, which frequently leaves him fatigued. Id.; see also, Claimant’s Exhibit D, p. 6. Lerner testified, “Employers hire people to perform tasks. And, his ability to work only 4 to 6 hours with feet elevated, with shoes off, massaging feet with frequent breaks, with some potential for not being real reliable because of pain or where he needed to be in bed, because of the potential effects of fatigue and all, it doesn’t translate into a residual capacity that’s useful in terms of employment.” Transcript, p. 30. The trier also noted the testimony of Robert Lesko, who performed a vocational evaluation of the claimant on January 18, 2000. Respondent’s Exhibit 2. Lesko maintained that there were part-time, sedentary jobs that would be available to the claimant, that optimally might provide him with 20 hours of employment per week. September 12, 2000 Transcript, pp. 41-42.

The trier concluded that the claimant’s testimony regarding his injury and his continuous pain thereafter was persuasive, and credited the reports of Dr. Sullivan and Dr. Santaro with respect to their injury diagnoses and their agreement as to a 50% permanent partial disability rating of the claimant’s lower extremities. He also accepted the claimant’s testimony with regard to the severity of his limitations, along with the reports of Dr. Sullivan and Dr. Sella that medically limited his options. The trier further agreed with the opinion of Hank Lerner, and found that the claimant was unemployable from a vocational perspective as per Osterlund v. State, 135 Conn. 498 (1949), from February 21, 2000 forward (the date of Lerner’s report). He accepted Lerner’s opinion that the claimant’s skills were not readily transferable, as his need for accommodation is far greater than that which would be considered reasonable. The trier further found that “permanent total disability benefits” should be awarded the claimant beginning on February 21, 2000. The respondents have appealed that decision to this board.

The first count of error in the respondents’ brief concerns the trier’s factual finding that the claimant suffered continuous pain from January 10, 1992 forward. They allege that, between the date of injury and the claimant’s March 10, 1998 surgery, his medical treatment was sporadic and that he often worked full duty through 1996. They contend that these events demonstrate that there was insufficient evidence to make such a finding. Considering that the trier’s award of total disability was from February 21, 2000 forward, we are a bit surprised that this particular finding has been selected for challenge on appeal. Still, we readily note that the claimant testified that, during the first few years following his injury, he managed to keep working despite steady pain in his heels throughout his employment with Woodcock Refrigeration, Janazzo Heating & Cooling, High Point Heating & Cooling, and Solo Mechanical. For example, he related that, while working for Janazzo, “Every day my feet would hurt. Every day there’s severe pain. I had to keep my feet on my toes. A lot of times I just called in sick because I just couldn’t handle it.” September 12, 2000 Transcript, p. 7. Given the nature of the claimant’s injuries following his fall on January 10, 1992, it was well within the trier’s province as factfinder to credit this testimony and make the subordinate finding that some degree of foot pain was constant, even if the claimant was generally able to work and ambulate in a relatively normal manner during the first few years that followed the injury. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). This board may not second-guess the trier’s impressions regarding evidentiary credibility on appeal, unless such findings are without any support in the evidence at all. Id.; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

The next issue raised by the respondents is the trier’s corrected finding that the claimant had lost full use of his lower extremities from the ankle down, as per his June 12, 2001 addition of ¶ V to the Finding and Award. This finding led to the trier’s attribution of the total disability award to both § 31-307(a) and § 31-307(c)(2). The appellants claim that there is insufficient evidence to support a finding of permanent total disability as per § 31-307(c)(2). We concur with this allegation of error.

Pursuant to § 31-307(c), certain enumerated injuries are automatically considered as causing total incapacity regardless of their actual effect on an injured employee’s vocational possibilities, and total disability benefits are paid accordingly. Among those injuries is “the loss of both feet at or above the ankle.” Section 31-307(c)(2). Other enumerated injuries include the total and permanent loss of sight of both eyes, the loss of both hands at or above the wrist, any injury resulting in permanent and complete paralysis of the legs or arms, and any injury that causes incurable imbecility or mental illness. It is clear from the statute that compensation is only paid when the loss of the listed body part is both total and permanent, as in the case of amputation.

The evidence here unequivocally demonstrates that, despite the severity of the claimant’s foot problems, he has not permanently lost the full use of his feet at or above the ankle. He is able to use his toes as an aid to ambulation, and the medical reports range no higher than a 50% permanent loss of use of the feet. It appears that the trier’s corrected finding was grounded primarily on Dr. Sella’s comment in his August 5, 1999 report that the claimant “basically has no use of his lower extremities from the ankles down.” Yet, Dr. Sella went on to say that the claimant had good use of his knees and hips, and had lost an estimated one-third of the use of each lower extremity. Further, he did not hesitate to state in his deposition that the claimant is able to bear partial weight on his forefeet, and clarified that he had meant to say “limited use” rather than “no use” in his written report, but had simply dictated it incorrectly. As there is no other evidence that remotely supports a finding of total and permanent loss of the feet, it would be highly inappropriate for this board to ignore Dr. Sella’s clarification, particularly given our Appellate Court’s recent decision in Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 742 (2001). We thus reverse ¶ V of the award insofar as it contains a finding of permanent total disability pursuant to § 31-307(c)(2).

However, our discovery of error on the § 31-307(c) issue does not betoken our acceptance of the respondents’ assertion that the finding of total disability as per Osterlund, supra, should also be reversed. When one considers the limitations that this claimant faces in his daily life due to his limited mobility and his unrelenting pain, it is easy to understand how a commissioner could reasonably conclude that he did not need to attempt a work search in order to prove that he is unfit to secure and maintain employment in a competitive marketplace. In Osterlund, our Supreme Court explained, “A finding that an employee is able to work at some gainful occupation within his reasonable capacities is not in all cases conclusive that he is not totally incapacitated. If, though he can do such work, his physical condition is such that he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.” Id., 506-507. If a claimant cannot reasonably pursue any occupation, thereby rendering his potential labor unmarketable, a trial commissioner may find him to be totally disabled. Covaleski v. Casual Corner, 4419 CRB-1-01-7 (June 27, 2002). We have had the opportunity to elaborate on the Osterlund case in light of various circumstances that have arisen, and have noted that a claimant may possess certain skills and abilities that would normally indicate a work capacity, yet be totally disabled due to additional factors. Covaleski, supra; Monaco v. Metal Masters, Inc., 15 Conn. Workers’ Comp. Rev. Op. 415, 417, 2245 CRB-3-94-12 (Aug. 29, 1996).

Though physicians such as Dr. Sullivan and Dr. Sella have ascribed a sedentary work capacity to the claimant, their most recent opinions have identified additional accommodations such as shortened hours, frequent breaks for foot massages and postural changes, and a need for constant foot elevation. When Hank Lerner, a vocational expert, interviewed the claimant and was able to synthesize these medical restrictions with the claimant’s description of his daily lifestyle (including the effects of his sleep deprivation and the constant distraction of his pain), he concluded that the level of accommodation that would be necessary for the claimant to work somewhere was “well beyond what would be considered reasonable” from an employer’s perspective. July 14, 2000 Transcript, p. 20. The trier was entitled to assess Lerner’s credentials, including his 25 years of experience in job placement, and find his testimony regarding the claimant’s employability reliable, even though he had not taken the step of interviewing employers to determine whether any of them would actually hire the claimant. Our law does not require a work search to be performed where it would be futile given the combination of a claimant’s transferable skills and the limitations in his or her abilities. Hidvegi v. Nidec Corp., 3607 CRB-5-97-5 (June 15, 1998); Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 1980 CRB-1-94-3 (Aug. 30, 1995).

We therefore conclude that the trial commissioner reasonably found the claimant to be totally disabled due to his current physical condition. Though the claimant does not qualify for permanent total disability benefits as per § 31-307(c)(2), the trier’s award of total disability benefits should remain ongoing unless and until a party is able to demonstrate that the claimant’s medical condition has improved to the point where he would be able to return to some form of gainful employment. See Morris v. A&A Acoustics, 3429 CRB-7-96-9 (August 8, 1997).

The trial commissioner’s decision is hereby affirmed, with the exception of his finding as to the applicability of § 31-307(c)(2).

Commissioners Donald H. Doyle, Jr. and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: December 17, 2004

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