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Milardo v. City of Hartford

CASE NO. 4808 CRB-1-04-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 15, 2005

GIOVANNI MILARDO

CLAIMANT-APPELLANT

v.

CITY OF HARTFORD

EMPLOYER

and

CONSTITUTION STATE SERVICE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Angelo Cicchiello, Esq., 364 Franklin Avenue, Hartford, CT 06114.

The respondents were represented by James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the April 27, 2004 Finding and Dismissal of the Commissioner acting for the Second District was heard November 15, 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.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Giovanni Milardo, has appealed from the April 27, 2004 Finding and Dismissal of the Commissioner acting for the Second District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. The claimant worked as a custodian for the respondent-employer from 1989 through March 26, 2001. During his employment he sustained a June 29, 1990 back injury, a May 15, 2000 right shoulder injury, a September 14, 2000 neck and right shoulder injury and a January 21, 2001 back, bilateral shoulder and neck injury. The claimant was also involved in several automobile accidents which were not related to his employment during that period. He sustained the following injuries as a result of those automobile accidents: on October 1, 1991 he injured his back and neck, on May 10, 1993 he injured his back, on June 25, 1997 he injured his back and on October 22, 1997 he injured his back and neck.

An issue at the formal hearing was whether the claimant was totally disabled commencing January 21, 2001, either medically, psychiatrically and/or functionally, as a result of injuries that he incurred during the course of his employment. Also at issue was whether the claimant sustained a psychiatric injury as a result of his work-related injuries. Based on the evidence before him, the trier found that the claimant had a light-duty work capacity and did not sustain a psychiatric condition or disability related to the work-related injuries. For these reasons, the trial commissioner dismissed the claimant’s claim for total disability benefits commencing January 21, 2001 and also dismissed his claim for medical and/or indemnity benefits as a result of a psychiatric condition. The claimant has appealed this decision.

The claimant alleges the trial commissioner erred in failing to determine that the claimant was totally disabled beginning January 21, 2001 based on the evidence in the record. In his view, the trier’s reliance on Dr. Shafer’s opinion that the claimant had a light-duty work capacity was an error. The claimant argues that Dr. Shafer’s January 6, 2003 report which suggested that the claimant should apply for Social Security due to difficulty in obtaining light duty work represents a change in the doctor’s original opinion that the claimant had a light duty capacity.

Dr. Shafer originally performed a Commissioner’s Examination on the claimant on January 21, 2002. In that report Dr. Shafer opined that the claimant had a light work capacity with a lifting restriction of no more than twenty pounds. Claimant’s Exhibit B. Subsequently, Dr. Shafer treated the claimant. Joint Exhibit 2, February 3, 2003 Deposition of Dr. Shafer, p. 13. During a deposition on February 3, 2003 Dr. Shafer explained that he still believed that the claimant could perform some work from an orthopedic standpoint and that there were no changes in the claimant’s medical condition from the time of the Commissioner’s Examination he performed. Id., p. 14. Although Dr. Shafer did recommend that the claimant seek Social Security he admitted that this suggestion was not based on a vocational assessment. Id., p. 17. Dr. Shafer explained that he recommended that the claimant apply for Social Security because his intuition led him to believe that the claimant was unlikely to find work.1 Id.

On appeal we do not engage in de novo review. The trial commissioner is entitled to make factual findings and conclusions based on the weight and credibility he assigns to the evidence, including determining the relative persuasiveness of conflicting medical opinions. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Sealey v. Pfizer, Inc., 3708 CRB-8-97-10 (January 28, 1999). “In weighing the various reports of doctors, a trial commissioner is free to credit part of an expert’s testimony while rejecting another part, as long as the medical evidence upon which he ultimately relies consists of an opinion that has been stated within a reasonable degree of medical probability.” Alicea v. ABCD of Bridgeport, 4318 CRB-4-00-12 (November 15, 2001) citing Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447 (2001). Whether a claimant is totally disabled is a factual finding for the trial commissioner. Garcia v. Bianchi, 4670 CRB-5-03-5 (May 3, 2004); Henley v. Pratt & Whitney, 4381 CRB-3-01-4 (March 1, 2002). We will not disturb this finding on review unless it is without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); O’Connor v. Massachusetts Electric Construction, 4734 CRB-2-03-10 (November 4, 2004). In our view, the trier could reasonably use Dr. Shafer’s opinion to support a finding that from a medical standpoint, the claimant is capable of light duty work. The finding is also supported by Dr. Selden and Dr. Rosatis’ opinions that the claimant had some light duty capacity.

The claimant contends the trier erred in finding that he was employable. In his view Michael Dorval’s opinion, does not support that finding. Mr. Dorval was the respondents’ vocational consultant. The claimant alleges that when Mr. Dorval was given the claimant’s proper medical history he actually opined that the claimant was unemployable. Although the claimant does not specifically cite where in the record evidentiary support may be found for this allegation, we surmise that the claimant is pointing us to pages 125 through 132 of the October 14, 2003 formal hearing transcript. There the claimant’s attorney recites his interpretation of Dr. Shafer’s opinion regarding the claimant’s work capacity. In that instance, Mr. Dorval’s testimony is based on the assumption that the claimant’s own interpretation of Dr. Shafer’s opinion regarding the claimant’s functional limitations is correct. Only when using the claimant’s assumptions did Mr. Dorval opine that the claimant might have problems finding employment. Id. pp. 129-132. Even if these assumptions were absolutely true, Mr. Dorval also reviewed and utilized Dr. Rosati and Dr. Seldons’ medical reports regarding the claimant’s work restrictions as tools in his vocational assessment. See, Claimant’s Exhibit I. Mr. Dorval testified that he relayed the claimant’s medical restrictions to various employers who stated that they would in fact hire a person with those limitations. Id., pp. 125-131. Mr. Dorval’s report clearly states that the claimant was employable in several entry level and low level semiskilled jobs. Claimant’s Exhibit I. For these reasons we find the trier’s reliance on Mr. Dorval’s assessment to be reasonable.

We also note, during the vocational rehabilitation evaluation that the claimant submitted into evidence he reported constant pain and he did not demonstrate that he could work more than four hours a day within a ten-day evaluation period. However, the commissioner found that the claimant’s subjective complaints and presentation of pain were inconsistent and not credible and for this reason did not credit the claimant’s vocational evaluation.

The claimant also alleges that the trial commissioner erred in failing to determine the claimant incurred a psychiatric condition which was causally related to the injuries sustained during his employment. The trial commissioner relied on Dr. Selig’s opinion regarding the claimant’s psychiatric condition. The claimant contends that Dr. Selig’s opinion was flawed because it was based on a one-time evaluation. We disagree. In preparation for Dr. Selig’s psychiatric evaluation of the claimant, he reviewed voluminous documentation relating to the claimant’s medical condition and workers’ compensation case. Respondent’s Exhibit 5. It is certainly a reasonable inference that Dr. Selig was very familiar with the claimant’s medical condition despite the single interview that took place.

The claimant also alleges Dr. Selig failed to ask several critical questions that were necessary to properly diagnose a psychiatric condition. During the formal hearing Dr. Selig was asked about the questions he asked the claimant regarding his symptoms. The claimant’s counsel asserted that Dr. Selig did not ask the claimant about certain symptoms that were relevant to a depression diagnosis. July 10, 2003 Transcript, Afternoon Session, pp. 84-89. In response to the claimant’s counsel’s line of questioning, Dr. Selig explained that many of the specific symptoms the claimant asked about were not classic indicators of depression at all. Id. Furthermore, Dr. Selig explained that he tailored his evaluation around the fact that he had an opinion early on in the interview that the claimant was not depressed. Id., p. 83.

Dr. Selig was clearly of the opinion that the claimant had no psychiatric problems that would rise to the level of a clinical illness. Id., p. 40. The determination of whether an injury is causally related to a workplace accident is a factual determination within the purview of the trier. Distassio v. HP Hood, Inc., 4592 CRB-4-02-11 (May 5, 2004). We will not second-guess the trial commissioner’s factual findings on review. Therefore, we find that the trier’s conclusion that the claimant did not have a psychiatric condition related to his workplace injury was reasonable and will be not be overturned on appeal.

Therefore, we affirm the decision of the trial commissioner.

Commissioners A. Thomas White, Jr. and Charles F. Senich concur.

1 Specifically Dr. Shaffer explained, “I’m pretty smart about what people can do. You know [I have] been around a long time, Jim [referring to the respondents’ attorney James L. Pomeranz], and I just felt that if he - not only his physical problem, but his emotional problems, that I couldn’t see where people would hire him unless he had a personal friend who would help put him to work and I don’t see where he had one.” Joint Exhibit 2, February 3, 2003 Deposition of Dr. Shafer, p. 17. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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