CASE NO. 4442 CRB-1-01-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 16, 2002
HARTFORD ITT INSURANCE GROUP
The claimant was represented by Frank V. Costello, Esq., McCarthy, Schuman & Coombes, 107 Oak Street, Hartford, CT 06106.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the September 18, 2001 Finding and Award of the Commissioner acting for the First District was heard April 26, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the September 18, 2001 Finding and Award of the Commissioner acting for the First District. He contends on appeal that the trier erred by finding that he was not entitled to temporary total disability benefits. We find no error, and affirm the trial commissioner’s decision.
The trial commissioner found that the claimant was working for the respondent Barridon Corporation on December 17, 1996, when he suffered a compensable injury. A March 21, 2000 approved voluntary agreement shows that the claimant sustained a 55% loss of use of his right master hand with a maximum medical improvement date of September 1, 1998. Three surgical amputation procedures have been performed on his hand and fingers. In the proceedings below, the claimant sought total disability benefits, or in the alternative, § 31-308a benefits for a partial loss of wage earning capacity.
The claimant testified that he left his country of origin, Portugal, in 1973 at the age of 25. There, he had obtained the equivalent of an eighth-grade education, followed by stints of employment in construction and farming, and three years of military service in Angola. His English reading comprehension is limited. When he came to the United States, he found a job almost immediately, and toiled for several different employers before he came to work for Barridon in 1987. He operated a number of different machines at Barridon, becoming most familiar with the power presses and drill presses. After his 1996 accident, Barridon accommodated him once he returned from surgery. He kept working there until he was laid off in March 1999. The claimant stated that his hands and fingers are discolored due to his injury, his skin peels, and he is generally unhappy. He doubts that he will find work, as he has been unable to do so in the past despite looking for jobs and applying for retraining with this commission’s Division of Workers’ Rehabilitation.
Dr. Aron, the claimant’s treating orthopedic surgeon, opined that the claimant has minimal use of his right hand and must work in a warm environment. He ruled out future employment as a janitor or a cashier. Dr. Mozzicato opined that the claimant’s mental and emotional symptoms seriously impede his employability, and affect his interaction with others. He restricted the claimant from any employment involving such interaction. Dr. Cohen, a vocational expert, testified that the claimant had no earning capacity and that he was unemployable. Kerry Quint, a rehabilitation counselor and vocational evaluator, testified that the claimant had an earning capacity between $250 and $340 per week. Dr. Ashmead, an independent medical examiner, thought the claimant capable of light manual or clerical tasks, provided minimal demands are placed upon his right hand.
The trial commissioner reviewed all of these opinions, and found the report of Dr. Ashmead regarding the claimant’s work capacity to be the most credible, along with the testimony of Ms. Quint regarding his earning capacity. The trier explicitly discounted the other medical opinions regarding total disability, including the testimony of the claimant. The trier ultimately found that the claimant had prior earnings of $1000 per week, with a residual earning capacity of $250 per week. He ordered that the claimant’s § 31-308a benefits be based upon the difference between those two sums, and that they be paid for a period equivalent to the weeks paid for his permanent partial disability. The claimant has appealed that decision to this board.
When a claimant asserts that he is totally incapacitated and is therefore entitled to weekly benefits under § 31-307(a), the burden of proof falls upon him. Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42 (1996); D’Amico v. State/Dept. of Correction, 4287 CRB-5-00-9 (Aug. 3, 2001). He must introduce evidence to persuade the trier of fact that he is totally disabled. This may be done by offering medical reports that state within a reasonable degree of medical probability that the claimant is physically or mentally unable to pursue any gainful occupation. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 448-49, 454 (2001); D’Amico, supra. It may also be accomplished by demonstrating that, despite some theoretical work capacity, the claimant cannot in the exercise of reasonable diligence find an employer who will employ him, thus rendering his labor unmarketable. Osterlund v. State, 135 Conn. 498, 506-507 (1949); Covaleski v. Casual Corner, 4419 CRB-1-01-7 (June 27, 2002).
However, a claim is not automatically established because a claimant has offered evidence that is capable of satisfying this standard of proof. The trial commissioner always 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. D’Amico, supra; Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000). If the factfinder is not persuaded that the evidence presented in support of the claimant’s request is reliable, then the claimant will not prevail in his action. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). On review, this board may not retry the facts of the case by weighing the evidence anew. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). We must respect the trier’s exercise of factfinding discretion, and may disturb his findings only if there is no evidence in the record to support them, or if the trier has omitted material facts that are truly undisputed. Warren, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).
The claimant’s appeal is based on his submission of evidence at trial to show that, despite his best efforts, he was unable to find employment, and was unable to be retrained by the Division of Workers’ Rehabilitation (DWR). He takes issue with the trier’s failure to articulate his reasons for disregarding the report from Easter Seals, the facility that the DWR selected to evaluate his employment options following his retraining. “[T]he least a claimant should expect is an explanation as to why the commissioner felt it appropriate to disregard his own office’s determination as to the claimant’s employability. More appropriate, however, would be a requirement that a commissioner find clear and convincing reasons why an employability report from a neutral third party chosen by D.W.R. should be disregarded. In other words, the C.R.B. should rule that the conclusions of Easter Seals should be determinative of the claimant’s work capacity absent clear and convincing evidence to the contrary.” Claimant’s Brief, p. 8.
This argument is reminiscent of a debate that has surfaced in several of our decisions regarding the obligation of a trial commissioner to articulate his or her reasons for failing to rely on the opinion of a § 31-294f medical examiner. See, e.g., Champagne v. O.Z. Gedney, 4425 CRB-5-01-8 (May 16, 2002); Zito v. Stop & Shop, 3929 CRB-3-98-11 (Feb. 17, 2000); Nieves v. SCM Company, 3317 CRB-6-96-4 (July 9, 1997); Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 1829 CRB-3-93-9 (April 25, 1995), aff’d, 40 Conn. App. 918 (1996)(per curiam). When a trier orders an exam pursuant to § 31-294f(a), there is a general expectation among the parties that the results of the exam will provide the trier with strong guidance. Champagne, supra. However, the trial commissioner is entitled to assess the weight and credibility of all medical reports and testimony, including the reports of § 31-294f examiners. Gillis v. White Oak Corp., 49 Conn. App. 630, 637 (1998). Further, Admin. Reg. § 31-301-3 states that a finding should contain only the ultimate material facts essential to the case, the parties’ claims of law, and the trier’s conclusions, while omitting the reasons for the trier’s conclusions. Though this board encourages commissioners to articulate their reasons for disregarding § 31-294f examiners’ opinions, the law does not forbid them from doing otherwise, and a trier’s decision may not be reversed based upon the absence of such an explanation. Gillis, supra; Champagne, supra; Nieves, supra.
Essentially, the vocational report from Easter Seals at issue here stands upon the same evidentiary footing as a medical examination conducted pursuant to § 31-294f. The trier may rely upon it as long as it constitutes competent evidence; see Dengler, supra, 447; and the parties may reasonably expect that it will be persuasive, but it does not transcend the trier’s authority to gauge the credibility of any lay or expert testimony put before him. It remains evidence, and will be treated as such. Here, the commissioner was asked to consider an October 7, 1999 report that diagnosed chronic pain, and described the claimant as being in a “transitional time” during which he should be developing pain-coping skills that would allow him to consider suitable employment in the future. Claimant’s Exhibit A. Easter Seals postponed identification of vocational goals until a time when he could focus less on his daily pain. Juxtaposed with this report and with the opinions of Dr. Cohen, Dr. Aron and Dr. Mozzicato were a report by Dr. Ashmead dated August 25, 1999, stating that the claimant was capable of clerical/light manual tasks; Claimant’s Exhibit J; and a March 20, 2000 employability evaluation (based in part on the functional limitations set forth in Dr. Ashmead’s diagnosis of physical capacity) in which Kerry Quint of CRC Services identified a number of different jobs for which the claimant could potentially be hired. Respondent’s Exhibit 2.
It is not the place of this board to say on review that the trial commissioner should have disregarded the reports of Dr. Ashmead and Ms. Quint in favor of other specialists’ opinions. Just as a commissioner is not required to provide “clear and convincing reasons” for disregarding a commissioner’s exam, he is not required to provide such justification whenever he disregards a “neutral” DWR-arranged vocational evaluation in favor of competing evidence. The two reports upon which the trier ultimately relied contain clear and definitive reasoning, and present rational diagnoses and recommendations, even though we recognize that the claimant does not agree that he is capable of the jobs suggested by Ms. Quint. We would observe that, from our vantage, some of those jobs seem compatible with the claimant’s physical restrictions. Certainly, we espy no clear error in suggesting such employment. Therefore, we cannot disturb the trier’s decision that the claimant continues to have an earning capacity of $250 per week, as it is based upon competent evidence in the record.
The trial commissioner’s decision is accordingly affirmed.
Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.