CASE NO. 4735 CRB-5-03-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 9, 2004
STATE OF CONNECTICUT/SOUTHERN CONNECTICUT STATE UNIVERSITY
The claimant was represented by Matthew Dodd, Esq. and Edward T. Dodd, Jr., Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., 700 West Johnson Avenue, Cheshire, CT 06410.
The respondent employer was represented by Michael Belzer, Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the September 22, 2003, Finding and Award of the Commissioner acting for the Fifth District was heard April 30, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Kevin Moran, has appealed from the September 22, 2003 Finding and Award of the Commissioner acting for the Fifth District. We affirm the decision of the trial commissioner.
The trial commissioner found the following pertinent facts. On October 10, 1989 the claimant sustained a compensable injury to his back while in the course of his employment as a plumber with the respondent. Dr. Michael Karnasiewicz performed surgery on the claimant’s back and the claimant was paid permanent partial disability benefits as a result of this claim. The claimant returned to work after this injury. On October 15, 1991 the claimant sustained another compensable injury to his back while in the course of his employment with the respondent. The claimant again returned to work after this injury. On March 28, 1994 the claimant sustained a further compensable injury to his back and again returned to work after this third injury. Dr. Karnasiewicz treated the claimant for all of his back injuries.
Thereafter, on February 12, 2002 the claimant experienced low back and leg pain. He consulted with his family physician, Dr. Lanny Moskowitz. Dr. Moskowitz sent the claimant for an MRI and forwarded the report to Dr. Karnasiewicz. The claimant was seen by Joan Doback, the physician’s assistant at Dr. Karnasiewicz’s office, on March 11, 2002. Ms. Doback gave the claimant a note to remain out of work until he could be seen by Dr. Karnasiewicz four weeks later. Dr. Karnasiewicz examined the claimant on April 18, 2002 and May 21, 2002. On May 21, 2002 Dr. Karnasiewicz opined the claimant’s condition was related to his original compensable injury. In a letter dated August 15, 2002 Dr. Karnasiewicz explained that the claimant was given a note which stated that he was totally disabled on May 9, 2002 and could return to work on August 5, 2002. In that letter the doctor further stated, “there is no comment on his ability to work from March 11, 2002 to May 9, 2002. However, it is quite likely that he was totally disabled during that period of time.” Finding ¶ 18, Claimant’s Exhibit E.
Dr. Moskowitz opined the claimant was totally disabled since February 12, 2002. Claimant’s Exhibit C. The trial commissioner gave weight to Dr. Karnasiewicz’s opinion and found the claimant to be totally disabled from May 9, 2002 to August 5, 2002.
The claimant filed a Motion to Correct on October 8, 2003 in which he contended that the trial commissioner should have found the claimant was totally disabled from March 11, 2002 though August 5, 2002 based on Dr. Karnasiewicz’s opinion. The Motion to Correct was denied by the trial commissioner on January 9, 2004. The claimant filed a petition for review of the trial commissioner’s Finding and Award on October 8, 2003.1 The claimant filed his appellate brief with this board on March 3, 2004. The issue on appeal is whether the commissioner’s finding that the claimant was not totally disabled from March 11, 2002 through May 9, 2002 was based on the evidence and permissible factual inferences. May 3, 2004 Brief of Appellant/Claimant.
The claimant alleges “that there was no factual or evidentiary basis for the Commissioner’s finding that the Claimant was not disabled from March 11, 2002 through May 9, 2002.” May 3, 2004 Brief of Appellant/Claimant. The claimant points out that the respondents have not submitted any contradictory evidence and have not set up an Independent Medical Examination. The claimant contends that because the trial commissioner found Dr. Karnasiewicz’s opinions credible and persuasive in the matter, Finding ¶ A, the trial commissioner should have found Dr. Karnasiewicz’s statement that “it is quite likely that he was totally disabled during that period of time,” Finding ¶ 18, Claimant’s Exhibit E, to be equivalent to Dr. Karnasiewicz stating that the claimant was disabled for that time period.
The conclusions drawn by the commissioner must stand if they are supported by the underlying facts and if they do not result from an incorrect application of the law to the facts. Crochiere v. Board of Education, 227 Conn. 333, 346-47 (1993), citing Fair v. People’s Savings Bank, 207 Conn. 535, 538-39 (1988). The trial commissioner is charged with making the determination of whether to accept or reject a physician’s statement and what weight to assign such statements. 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). The trial commissioner has the right to reject uncontradicted testimony. Garcia v. Bridgeport, 3595 CRB-4-97-4 (June 8, 1998) (citing Kish v. Nursing and Home Care, Inc., 47 Conn. App. 620, 627 (1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (January 24, 1997). Therefore, even if one were to read Dr. Karnasiewicz’s statement regarding total disability to mean the claimant was totally disabled from March 11, 2002 to August 5, 2002, the trial commissioner is free to reject that specific part of the doctor’s opinion and find his other opinions credible. However, as discussed below, we do not agree with the claimant’s interpretation of Dr. Karnasiewicz’s statements regarding total disability.
In a workers’ compensation case, the claimant has the burden of proving the injury was causally connected to the workplace and doing so via competent evidence. Keenan v. Union Camp Corporation, 49 Conn. App. 280, 282 (1998). “In order to sustain a legal conclusion of liability, a medical opinion must be definite and positive and not merely speculative or likely.” Aurora v. Miami Plumbing & Heating, Inc., 2 Conn. Workers’ Comp. Rev. Op. 113, 238 CRD-7-83 (December 10, 1984), no error, 6 Conn. App. 45 (1986). In this case, the trial commissioner may have determined that Dr. Karnasiewicz’s opinion was too speculative to uphold a finding of liability for the March 11, 2002 to August 5, 2002 period. We believe the trial commissioner’s finding in this regard is reasonable. Although Dr. Karnasiewicz said that the claimant was likely disabled during that period, he prefaced this comment by stating that he had no comment regarding the claimant’s disability for that period. We feel these remarks read together are adequately tentative enough to allow the fact-finder to conclude that the medical evidence in the record was insufficient to find the claimant totally disabled for the period in question.
Therefore, we affirm the September 22, 2003, Finding and Award of the Commissioner acting for the Fifth District.
Commissioners A. Thomas White and Amado J. Vargas concur.
1 No reasons for appeal were filed. Administrative Regulation § 31-301-2 requires a party to file Reasons for Appeal within ten days after the filing of the appeal petition. A party’s failure to file timely Reasons of Appeal renders that party’s appeal voidable by this board. Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 697 (1987); Evans v. Shelton, 16 Conn. Workers’ Comp. Rev. Op. 155, 156, 3108 CRB-4-95-6 (May 2, 1997). However, we have refrained from dismissing an appeal if the opposing side suffers no real prejudice. Chang v. Pizza Hut of America, Inc., 4122 CRB-6-99-9 (November 28, 2000). The respondent notes in his brief that no Reasons for Appeal was filed. However, the respondent has not filed a Motion to Dismiss based on the appellant’s failure to timely file the Reasons for Appeal. Furthermore, we think the appellee was apprised of the issues on appeal via the claimant’s Motion to Correct and has not sustained any prejudice. For these reasons we will allow the appeal to proceed. BACK TO TEXT