State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Sousa v. Intercity Development, LLC

CASE NO. 4878 CRB-8-04-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 17, 2005

NUNO SOUSA

CLAIMANT-APPELLEE

v.

INTERCITY DEVELOPMENT, LLC

EMPLOYER

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Carlos Santos, Esq., and Rosa C. Rebimbas, Esq., Fitzpatrick, Mariano & Santos, P.C., 203 Church Street, Naugatuck, CT 06770.

The respondent, Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 4, 2004 Order from the Commissioner acting for the Eighth District was heard April 15, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Second Injury Fund has petitioned for review from the October 4, 2004 Order of the Commissioner acting for the Eighth District. The Fund contends on appeal that the trier erred by finding that the claimant was totally disabled for a nine-month period through July 1, 2003. We find no error, and affirm the trial commissioner’s decision.

The trial commissioner found that the claimant sustained an accidental injury on October 15, 2002, when he fell from a stepladder and shot a nail into his left leg with a nail gun during the course of his employment as a carpenter with the respondent Intercity Development, LLC. On that date, the respondent had no workers’ compensation insurance. The claimant was transported to the hospital by ambulance, where he underwent surgery with Dr. Duffy. After one follow-up visit, the claimant was not treated any further because of a lack of funds to pay for medical care.

The claimant testified, and the trier so found, that he was unable to move his leg for at least three months after the accident, and was on crutches for about six months. The claimant was unable to work in any capacity until the summer of 2003, when he moved to South Carolina in order to take advantage of increased job opportunities. He continues to experience problems with his leg. The trier ordered the respondent to accept the claimant’s injury as compensable, and awarded temporary total disability benefits to the claimant from October 15, 2002 through July 1, 2003 at his base compensation rate of $463 per week. When the employer failed to make payment within ten days of that order, the trier directed the respondent Second Injury Fund to assume liability pursuant to § 31-355. The Fund has filed a petition for review from that ruling.

The Fund argues on appeal that the claimant failed to meet his burden of proving that he was totally disabled from October 15, 2002 through July 1, 2003. In order to prove total disability, a claimant is expected to provide medical evidence demonstrating that he or she is totally disabled within a reasonable degree of probability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Horobin v. West Haven, 4724 CRB-3-03-9 (December 2, 2004). Other corroborative evidence may also be relevant, such as a claimant’s testimony regarding his condition or his reasons for not obtaining medical treatment. Azzarito v. State/Office of the County Sheriff, 4173 CRB-7-00-1 (April 26, 2001). An injured worker is entitled to total disability benefits when his injury results in a total incapacity to work, i.e., the destruction of the capacity to engage in one’s customary calling or any other occupation which one might reasonably follow. Yuille v. Bridgeport Hospital, 4525 CRB-4-02-5 (April 28, 2003); Laliberte v. United Security, Inc., 4264 CRB-5-00-7 (July 26, 2001), aff’d, 261 Conn. 181 (2002). “Eligibility for such benefits is first and foremost a medical question, and is usually established via a medical opinion (or a series of periodically updated opinions) that states within a reasonable degree of probability that a claimant’s physical or physiological condition has rendered her unable to work.” Yuille, supra. Absent such evidence, total disability would be difficult to prove, unless there were dramatic circumstances that made such disability self-evident. Id.

The trial commissioner expressly found the claimant’s testimony at the February 23, 2004 formal hearing credible and persuasive. This includes the claimant’s testimony that he shot a nail through two bones in his left leg, effectively nailing the knee joint shut, his testimony that he was unable to move his leg for at least three months, and that he was on crutches for about six months, after which he was able to move it “little by little.” Transcript, pp. 4, 9. The claimant also explained that he was unable to work until sometime in the summer of 2003. Id., p. 5. Further, he stated that Dr. Duffy saw him a week after his surgery for a follow-up appointment, but he was unable to attend any additional follow-up appointments due to his inability to pay. Id. His employer had indicated that it would pay for therapy, but failed to follow through, leaving the claimant’s leg “pretty much paralyzed” and him without the means to get treatment. Id.

As the finder of fact, it was the trier’s duty to assess the credibility of this testimony and the medical evidence on file. This board may not second-guess those determinations of credibility on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Our role is merely to review the evidence to ascertain whether there is sufficient evidence in the record to support the trier’s factual findings. Duddy, supra; Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Garcia v. Legare Plumbing & Heat, 3856 CRB-2-98-7 (September 23, 1999).

Because there is no medical report in evidence stating that the claimant was totally disabled for any given period of time, we must decide whether the claimant’s testimony, the nature of his injury and other related circumstances made the existence of total disability self-evident. There are some cases that are straightforward enough to allow the cause of an injury to be determined by an average layperson without supporting medical evidence; Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449 (2001); Garofalo v. Jarvis Products Corp., 4249 CRB-8-00-6 (September 12, 2001). Otherwise, expert testimony is necessary to establish causation. Murchison, supra. Applying that principle to the claimant’s allegation of total disability here, we find that there is a doctor’s report describing the injury as “a nail with anchors driven to the region of the lateral femoral condyle through the anterior aspect. . . . Patella is intact. No associated fracture of the femur.” Claimant’s Exhibit B. Dr. Duffy had to remove the nail with a pair of pliers by grasping its head and wedging it loose, as it was buried superficially within the quadriceps. Following surgery, the claimant reported a lot of pain through the next day. Id. The October 23, 2002 follow-up report reports the removal of a foreign body with arthroscopy and debridement, and recommends therapy and progressive weight-bearing, with a follow-up examination in one month. Id.

At that point, we are left to the claimant’s testimony to establish his condition. The claimant stated that Dr. Duffy told him at the follow-up appointment that he was unable to work, but he could not remember if the doctor gave him a note removing him from work. Transcript, p. 9. He then stated that he was on crutches for six months, and began looking for work again shortly before leaving to South Carolina. The trial commissioner calculated that date to be approximately July 1, 2003, based upon the claimant’s testimony. See Transcript, p. 11. The claimant explained that he was having a hard time finding work in Connecticut because his contacts knew of his injury, and did not want to hire him or refer him for work. Id, p. 12. As for further treatment, his lack of funds or insurance and the employer’s unwillingness to accept financial responsibility for the injury prevented him from obtaining care. Id., pp. 9-10.

The trier was entitled to place weight on the claimant’s testimony that Dr. Duffy removed him from work, as well as his testimony that he required crutches for about six months. During that timespan, it was reasonable for the trier to find him totally disabled, given the nature of his injury, his occupation, and the injury’s reported effects on him. As for the time period between (approximately) April 15, 2003 and July 1, 2003, the claimant stated that he was able to move “little by little” after getting off crutches. Given the claimant’s other testimony and his explanation for not obtaining follow-up medical treatment, the trier drew a reasonable conclusion that the claimant was able to work again as of July 1, 2003. “There is simply no hard and fast rule as to the length of time that may elapse between doctor’s visits in a total disability case; many other factors may also govern a trier’s decision.” Azzarito, supra; see also, Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 725 CRD-6-88-4 (October 20, 1989)(CRB upheld finding of total disability where claimant had not seen doctor for 20 months, and doctor testified that the probability was that the claimant’s condition had not improved).

We also note that, in this case, the uninsured employer must also bear some responsibility for not making medical treatment available to the claimant, thereby leaving him with no ready means to corroborate his period of total disability. As long as the trier found the claimant to be a credible witness, it would be unjust to penalize him for his employer’s failing by withholding total disability benefits. We believe that, under circumstances such as these, the remedial purpose of the Workers’ Compensation Act is best served by allowing the claimant’s testimony to serve as adequate corroboration of his disability status.

The trial commissioner’s decision is therefore affirmed.

Commissioners Michelle D. Truglia and Nancy E. Salerno concur.

Workers’ Compensation Commission

Page last revised: October 24, 2005

Page URL: http://wcc.state.ct.us/crb/2005/4878crb.htm

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