CASE NO. 4782 CRB-3-04-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 13, 2005
CITY OF WEST HAVEN
The claimant was represented by Peter A. Treffers, Esq., 129 Church Street, Suite 800, New Haven, CT 06510.
The respondents were represented by James L. Sullivan, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.
This Petition for Review from the January 21, 2004 Finding and Award of the Commissioner acting for the Third District was heard September 24, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, City of West Haven and CIRMA, have appealed from the January 21, 2004 Finding and Award of the Commissioner acting for the Third District.1 We affirm the decision of the trial commissioner.
In 1983 the claimant injured his back in a non-work related automobile accident. April 23, 2004 Transcript, p. 16. On September 28, 1994 the claimant was employed for the respondent-city as a driver/laborer when he sustained a work related back injury while the town owned truck he was driving was rear-ended. At that time the claimant treated with Dr. Michael Luchini, an orthopedist, who prescribed physical therapy and medication for the injury. The claimant was out of work for four or five months after that accident. Id., p. 12.
The claimant sustained another work-related injury to his back on July 26, 1995 while he was pulling brush out of a pile. The claimant alleged that this was a re-injury of his 1994 back injury. Id., p. 13. The claimant returned to work two or three months after being treated by Dr. Luchini with additional medication and therapy for that injury. Id., p. 17.
The claimant contended that at some point in 1998 he was unable to perform his job duties. Id., p. 13. He felt that his back injury was getting worse and he could not drive the town’s truck. He said that he could not perform any heavy lifting duties or tasks that required bending. The claimant testified that at some point he requested that the respondent-city provide him with light duty work, however, he was told no light duty work was available. Id., pp. 18, 19. The claimant testified he had taken a lot of time off from work during this period because he was unable to perform his job. For these reasons, in October 1998 the claimant decided to retire.
On February 17, 1999, Dr. Luchini saw the claimant who complained of chronic low back pain, muscle spasms and stiffness. At that time, Dr. Luchini opined that the claimant was totally disabled from gainful employment. The claimant returned to Dr. Luchini in July 2002. Dr. Luchini stated the claimant’s back injury had worsened and diagnosed him with severe, progressive, degenerative disc disease of the lumbar spine which was the result of the claimant’s work related injuries. Claimant’s Exhibit A, Dr. Luchini’s July 17, 2002 report.
On July 10, 2003 the claimant was examined by Dr. Robert Margolis at the respondents’ request. Respondents’ Exhibit 1. Dr. Margolis stated that at the time of the claimant’s retirement he had a light duty work capacity and that the claimant was at least capable of performing sedentary work on a regular basis.
The trial commissioner was persuaded by Dr. Luchini’s opinion. Therefore, the trier determined the claimant was temporary totally disabled from February 17, 1999 through the date of the formal hearing, April 24, 2003. The respondents filed a Motion to Correct the trial commissioner’s findings which was denied it its entirety.
The respondents have appealed the Finding and Award alleging that the trial commissioner erroneously relied on Dr. Luchini’s assessment that the claimant was totally disabled.2 The respondents contend because Dr. Luchini was an orthopedist, as opposed to a vocational expert, he was not qualified to render an expert opinion as to work capacity.
Whether a claimant is totally disabled pursuant to § 31-307 C.G.S. or has a light work duty capacity are factual determinations for the trial commissioner. Liano v. Bridgeport, 3199 CRB-4-95-10 (March 25, 1997); Monaco v. Metal Masters, Inc., 15 Conn. Workers’ Comp. Rev. Op. 415, 2245 CRB-3-94-12 (August 29, 1996); Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 1980 CRB-1-94-3 (August 30, 1995); Holevinski v. State/Southbury Training School, 9 Conn. Workers’ Comp. Rev. Op. 215, 988 CRD-5-90-3 (September 12, 1991). We will not disturb a trial commissioner’s factual finding unless it is contrary to law, or based on impermissible or unreasonable inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Rose, supra.
In the instant case, the trial commissioner’s conclusion that the claimant was temporary totally disabled from February 17, 1999 through the date of the formal hearing is clearly supported by the record. Dr. Luchini used his expertise in the field of orthopedics to describe how the claimant was physically limited. In Dr. Luchini’s February 17, 1999 report he stated that the claimant could not do any job that required extended amounts of standing or sitting. Claimant’s Exhibit A. Dr. Luchini opined the claimant was “only capable of doing some type of job which would allow freedom of motion and no prolonged standing, bending, stooping or lifting.”
The respondents argue the fact that the trial commissioner referred to Dr. Luchini’s opinion as a “vocational assessment,” Findings, ¶ 18, and that Dr. Luchini discussed such factors as the claimant’s age and education in his opinion necessarily lead to the conclusion that the trial commissioner used Dr. Luchini’s opinion as a vocational expert. This is plainly not the case as evidenced by the way the trial commissioner addressed this issue at the formal hearing. The trial commissioner explained, “If he’s [Dr. Luchini] saying medically that this person can’t work, that’s a medical opinion. Obviously a medical opinion having to do with his vocation. But I can’t discount a doctor’s medical opinion.” April 24, 2003 Transcript, p. 25-26. The trial commissioner went on to state, “If a doctor says, look, I have [a] patient who is an absolute mess here. There’s just no way this man or woman could work, it’s valid.” Id. It is obvious from this exchange that the trial commissioner used Dr. Luchini’s report for its validity as to the doctor’s medical opinion as opposed to that of a vocational expert. Furthermore, the trial commissioner explained that if Dr. Luchini made improper vocational assessments he would discount those portions of the reports. Id., pp. 26-27.
It is important to note that although a vocational expert’s opinion might strengthen a case not every case requires it. See, Barnett v. Harborview Manor, 3189 CRB-3-95-10 (February 27, 1997). Here the trial commissioner had Dr. Luchini’s medical opinion that the claimant was unable to work in conjunction with the claimant’s own testimony that he was unable to work. The trier stated that he was more persuaded by Dr. Luchini’s opinion than Dr. Margolis’ opinion in regards to total disability. As we have said many times before, it is the trial commissioner’s responsibility to make a credibility determination when there is conflicting medical evidence. Paige v. Hartford Insurance Co., 4594 CRB-2-02-12 (January 9, 2004); Doyle v. Haven, 3038 CRB-3-95-4 (January 3, 1997). For this reason, the finding will not be overturned.
However, it is also noteworthy that the two medical opinions on this issue were not all that dissimilar. Dr. Margolis stated, “I agree with Dr. Luchini that there is a difference between pragmatic total disability and theoretic total disability.” Respondents’ Exhibit 1. Dr. Margolis goes on to state, “As Dr. Luchini notes, pragmatically, employability in this situation, with these limitations, in this age group, is extremely unlikely.” (Emphasis added). Id. Despite this statement, Dr. Margolis ultimately opines that the claimant had “some or at least sedentary work capacity” at the time of his retirement. Id.
Our Supreme Court has long held that the fact that a claimant has some light duty work capacity does not always preclude a finding that the claimant is totally disabled. Osterlund v. State, 135 Conn. 498, 506-507 (1949). The court explained, if from a practical standpoint the claimant cannot find employment despite his diligent search efforts he may in fact be totally disabled despite the light duty work capacity. Id. When a claimant has a theoretical light duty work capacity it is reasonable for a trial commissioner to consider the claimant’s age, education and other factors in order to determine whether the claimant is in fact totally disabled. Hidvegi v. Nidec Corporation, 3607 CRB-5-97-05 (June 15, 1998). Therefore, here it would be proper for the trial commissioner to consider factors Dr. Luchini mentioned, such as the claimant’s age and education, in making the factual determination that the claimant was totally disabled.
Furthermore we note, although the claimant in this case had the burden to prove that he was totally disabled, see Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 41, 42 (1996); Azzarito v. State/Office of the County Sheriff, 4173 CRB-7-00-1 (April 26, 2001), the respondents’ own expert put the respondents on notice that the claimant might only have a theoretical light duty capacity. The respondents then had the opportunity to consult a vocational expert to determine whether the claimant had an actual light duty capacity, and submit evidence accordingly. However, they failed to provide any such evidence.
Therefore, we affirm the January 21, 2004 Finding and Award of the Commissioner acting for the Third District.
Commissioners A. Thomas White, Jr. and Charles F. Senich concur.
1 We note that extensions of time were granted during the course of the appellate process. BACK TO TEXT
2 The respondents also alleged that the trial commissioner lost jurisdiction of the matter because he did not issue his findings within 120 days as required by § 31-300 C.G.S. However, at oral argument the respondents asked that the timeliness issue be disposed of due to a mathematical miscalculation. BACK TO TEXT