CASE NO. 4995 CRB-8-05-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 17, 2006
RADIO FREQUENCY SYSTEMS
LIBERTY MUTUAL INSURANCE CO.
The claimant appeared pro se.
The respondents were represented by Robert Reeve, Esq., Scully, Nicksa & Reeve, LLP, 79 Main Street, P.O. Box 278, Unionville, CT 06085-0278.
This Petition for Review from the September 1, 2005 Finding and Dismissal of the Commissioner acting for the Eighth District was heard March 24, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has suffered a number of lower back injuries. His first compensable injury occurred in 1994. He has been diagnosed with spondylolisthesis of the lumbar spine and was awarded a 15% permanent partial disability rating as a result of an accident predating his current claim. On July 15, 2004 he suffered another compensable lower injury attempting to lift a heavy box at work and sought either temporary total disability benefits or in the alternative, temporary partial disability benefits as a result of the 2004 injury. Following a formal hearing the Commissioner acting for the Eighth District issued a Finding and Dismissal on September 1, 2005. The claimant has appealed from that dismissal. Following our hearing on the appeal, we find no error.
The claimant in this instance is proceeding pro se. The essence of his dispute over the 2005 Finding and Dismissal is his averment the trial commissioner failed to properly credit evidence he presented that he was totally disabled from August 2004 to April 2005. This evidence includes his averments that a number of his medical ailments are all attributable to the compensable 2004 incident. This course of action is thwarted, however, by legal precedents that limit appellate panels from reexamining the findings of facts made at the trial level.
Our Supreme Court recently restated this principle in Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665-666 (2006).
The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings . . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts . . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.)
While Moutinho involved a land use application, we believe its reasoning is equally applicable to administrative appeals from a decision of a workers’ compensation commissioner. We must therefore review the Finding and Dismissal solely to ascertain if the facts found are supported by evidence.
The trial commissioner held a Formal Hearing on March 23, 2005 and April 8, 2005 and found the following facts. He found the claimant testified to four prior workers’ compensation back injuries and two motor vehicle accidents, involving an 11 or 12-year period of low back injuries. Findings, ¶ 8. He found the claimant had treated with Dr. Druckemiller who rated the claimant at a 15% disability, capable of modified light duty work, and recommended surgery for a small disc herniation, Findings, ¶¶ 9-10. He found the claimant was seeking medical treatment for a bowel dysfunction, claiming it was due to his accepted 2004 back injury. Findings, ¶ 13. His support for this claim was the testimony of Dr. Gary Cohen. The trial commissioner also found that the claimant had treated for bowel dysfunction prior to the accident and found that Dr. Cohen also testified the claimant had returned to his pre-accident level of functioning. Findings, ¶¶ 14-17.
The claimant also sought compensability and medical treatment for urinary, bladder, sexual and genital problems which he associated with the compensable July 15, 2004 accident. Findings, ¶ 18. The trial commissioner found that a number of doctors had noted these issues during various examinations in 1998 and 1999. Findings, ¶¶ 20-22. The trial commissioner also found the claimant believed as a result of the 2004 accident that his permanent partial disability rating had increased by 5%, based on the opinion of Dr. Shine. Findings, ¶¶ 23-24. The claimant was examined by a respondents’ examiner, Dr. Mark Lorenze, who opined that the previous 15% permanent partial disability rating was still valid, and the claimant had not sustained disability to the cervical or thoracic spine. Findings, ¶¶ 26-28.
Based on the foregoing evidence, the trial commissioner concluded the claimant did not sustain his burden of proof in regards to entitlement to temporary total benefits, Findings, ¶ f and, he had not sustained his burden of proof in regards to temporary partial benefits, Findings, ¶ m. In regards to the issue of bowel dysfunction, the trial commissioner concluded the claimant was not entitled to additional medical treatment or benefits. Findings, ¶ p. The trial commissioner also concluded the claimant’s urinary, bladder, sexual and genital problems were not related to the accepted injury. Findings, ¶ s. He also found Dr. Lorenze more persuasive than Dr. Shine on the issue of increased permanency, and determined the July 15, 2004 injury was a temporary aggravation, Findings, ¶¶ v and w. As a result, the trial commissioner issued a Finding and Dismissal on September 1, 2005.
We must defer to the fact-finding prerogative of the trial commissioner in considering this appeal. We must also apply the Appellate Court’s precedent in Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001). “It is well settled in workers’ compensation cases that the injured employee bears the burden of proof, . . . .” Id., 447. It is apparent the trial commissioner did not find the claimant’s evidence persuasive. We must therefore determine whether this was a reasonable conclusion.
In regards to the claim for temporary total disability, the legal standard for such awards is discussed in Osterlund v. State, 135 Conn. 498 (1949) as being “not the employee’s inability to work at his customary calling but the destruction of his capacity to earn in that or any other occupation which he may reasonably pursue . . . .” Id., 505. The claimant did not offer evidence to the trial commissioner that he could have found persuasive consistent with the Osterlund test on the issue of total disability. The claimant’s treating physician, Dr. John Shine, opined that the claimant “is able to do work that does not require lifting over fifteen pounds or repeated bending and stooping.” Claimant’s Exhibit A. Therefore, the trial commissioner properly dismissed the claim for temporary total disability benefits.
The claimant also sought temporary partial disability benefits, a claim denied by the trial commissioner. Under § 31-308(a) C.G.S., a claimant may seek a wage differential between the wages he would have earned in his pre-injury job and his actual earnings after the accident. The trial commissioner did find that the claimant presented medical evidence that he was partially disabled through at least October 24, 2004 (Findings, ¶¶ g and h) but concluded the statutory requirements of Chapter 568 had not been met to award temporary partial benefits. Having reviewed those requirements, we concur.
The evidence in the record is that the claimant was employed by the respondent until August 8, 2004, when he was terminated. Following his termination, he received 26 weeks of unemployment compensation benefits. Findings, ¶ i. Section 31-308(a) C.G.S permits payment of a differential based on “wages” earned following a compensable accident.
Accordingly, partial incapacity benefits are available when an actual wage loss has resulted from the injury, providing a wage supplement for the difference between the wages the worker would have earned, but for the injury, and the wages the worker currently is able to earn. Rayhall v. Akim Co., 263 Conn. 328, 350 (2003) (Emphasis added).
We have previously held that the payment of unemployment compensation is not the functional equivalent of “wages” for the purposes of ascertaining an “actual” wage loss. See Foss v. Continental Forest Industries, 5 Conn. Workers’ Comp. Rev. Op. 1, 341 CRD-6-84 (March 9, 1988).1 In Foss, we held the trial commissioner must determine whether the claimant met the requirements under the statute for partial disability and then calculate a wage loss. Moreover, “we have stated many times that whether a claimant has satisfied the criteria of § 31-308(a) is essentially a factual issue for the trier to decide.” Shepard v. Wethersfield Offset, 4886 CRB-1-04-11 (October 20, 2005) and that “[t]he burden of proving entitlement to benefits is on the claimant . . . .” Id.2 The claimant needed to prove he was either working during this period, actively seeking work or vocationally unable to secure employment. Documentary evidence that the claimant was actively seeking work such as evidence of work searches did not appear in the record. Given the circumstances, we uphold the trial commissioner on this issue.
The claimant also believes his bowel dysfunctions can be attributed to the compensable 2004 injury. The trial commissioner determined that those ailments could not be attributed to the compensable injury. A review of the record indicates there was substantial evidence supportive of the trial commissioner’s position. The claimant testified to long-term use of laxatives Exhibit 23, pp. 84-85. One of his treating physicians, Gary M. Cohen, testified at a January 17, 2005 deposition that based on his review of other medical report the claimant had been suffering from a preexisting constipation condition which was aggravated by the back injury. Dr. Cohen treated the claimant following that injury and testified that the problems had returned to a baseline condition. Exhibit 24, pp. 22-24. Another physician, Dr. Demetra Elftheriou, wrote the claimant had been examined with a constipation problem by her office on April 19, 2004, prior to the accident, Exhibit 10. The findings of the trial commissioner were supported by the evidence.
The trial commissioner decided the claimant failed to prove his urinary and genital medical issues were a result of the compensable injury. The evidence submitted is supportive of his conclusion these issues predated the compensable injury. In May 1998, Dr. Russell Allen examined the claimant for genital region pain. He attributed it to existing lumbar spine problems. Exhibit 15. In October 1999, Dr. Russell Chiappetta examined the claimant responsive to a contemporary motor vehicle accident. He noted the claimant complained of numbness in his genital area. Exhibit 11. Dr. Paul Coplenski examined the claimant in November 1999 for testicular pain. Exhibit 14. The trial commissioner’s decision was supported by the evidence. While the claimant testified these issues were related to the 2004 injury, the trial commissioner could and did conclude the present issues were substantially the same as the pre-accident issues.
In resolving the issue of increased permanency from the July 15, 2004 accident the trial commissioner had to choose between two conflicting expert reports. The claimant’s expert, Dr. Shine, opined that the present compensable injury had resulted in an additional 5% permanent partial disability rating. Claimant’s Exhibit A. The respondents point to the opinions of Dr. Lorenze. Dr. Lorenze examined the claimant on March 2, 2005 and concluded “I do not believe there is any increase related to the specific incident of July 15, 2004 with regards to permanency rating.” Respondents’ Exhibit 9. The trial commissioner had to determine which report he found more persuasive. He decided the Respondents’ expert report was more credible, and this is a decision reserved to his auspices. See Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006).
In summary, the trial commissioner’s findings were all supported by evidence in the record. Accordingly, we must dismiss this appeal.
Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this decision.
1 We note that had the claimant been awarded 31-308(a) benefits the claimant would have been subject to a statutory right of reimbursement to the Unemployment Compensation Fund pursuant to § 31-258 C.G.S. Rodrigues v. American National Can, 4043 CRB-5-99-4 (July 26, 2000). BACK TO TEXT
2 The trial commissioner also made a finding that the claimant did not undergo recommended surgery that could have ameliorated his condition. Findings, ¶ l. Although he did not cite this statute as grounds for his Finding and Dismissal of the 31-308(a) claim, the trial commissioner’s reasoning herein is consistent with § 31-294e C.G.S. which gives the trial commissioner the right to suspend payment of compensation if a claimant refuses to accept “reasonable” medical aid. As we held in Barnett v. Harborview Manor, 3189 CRB-3-95-10 (February 27, 1997). “The reasonableness of a particular treatment is a question of fact for the commissioner to resolve. . . .” BACK TO TEXT