CASE NO. 4996 CRB-4-05-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 20, 2006
CUSTOM AIR SYSTEMS, INC.
The claimant was represented by James T. Baldwin, Esq., Coles, Baldwin & Craft, L.L.C., 1261 Post Road, P.O. Box 577, Fairfield, CT 06824.
The respondents were represented by Richard Aiken, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the August 24, 2005 Finding and Orders of the Commissioner acting for the Fourth 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 has petitioned for review from the August 24, 2005 Finding and Orders of the Commissioner acting for the Fourth District. He appeals on the ground that the trier erred by concluding that he was not entitled to collect § 31-308a benefits. We find no error, and affirm the trial commissioner’s decision.1
The claimant sustained a compensable lumbar spine injury on March 17, 1998, and has not worked since that time. He underwent discectomy surgery in May 1998 and lumbar spine fusion surgery in September 1999. Afterward, the claimant continued to experience back pain. Dr. Belkin had examined him at the respondents’ request on October 21, 1998, opining that he was unable to work and might be permanently disabled due to his injuries. On January 16, 2001, Dr. Brennan indicated that the claimant was unemployable, and that it was unlikely he would return to gainful employment because of his chronic spinal condition and chronic pain. Dr. Mushaweh also examined the claimant at the respondents’ request. He was concerned about the claimant’s use of narcotic pain medication, and as of February 14, 2001 stated that the claimant had not reached maximum improvement and that it would be difficult to say when he would be able to re-enter the work force. Claimant’s Exhibit D.
Medical reports suggesting a work capacity began to appear in 2002. Dr. Kost examined the claimant twice at the respondents’ request, and stated that the claimant had a permanent lifting restriction of 10 pounds. Dr. Kaplan performed a commissioner’s examination on December 19, 2002, and concurred with the 10-pound lifting restriction. He thought the claimant capable of doing light duty work. He also opined that the claimant would need chronic pain medication, and recommended a psychological evaluation. Dr. Dawe stated in March and June, 2002, that the claimant had reached maximum improvement with a 15% permanent partial disability of the lumbar spine, which opinion the trier found credible. The respondents filed a Form 36 that was approved on December 16, 2002, terminating the claimant’s temporary total disability benefits. The proceedings below stemmed from a challenge to that Form 36.
The trial commissioner noted that the claimant is 40 years old, with a high school diploma and certification as an automobile and HVAC mechanic. He suffered severe injuries to his knee and right foot in a 1990 motorcycle accident. He can perform some housekeeping chores, including cutting his lawn on a riding mower and doing pruning work on approximately 100 trees that he has in his backyard. His participation in a functional capacity evaluation was limited by pain perception and, according to the evaluator, an alleged lack of motivation.
Dr. Cohen, a vocational rehabilitation specialist, was of the opinion that the claimant would not be able to engage in meaningful employment. He stated that, at best, the claimant is one step above being unemployable, and could work part-time in an adaptable setting with an employer that would make the necessary adjustments. He gave the claimant an earning capacity of between $8,400 and $13,600 per year. Michael Dorval, a certified rehabilitation counselor, evaluated the claimant in October 2003, and took the position that the claimant had some transferable job skills. He limited the claimant to part-time light duty work with frequent changes of position, no bending, and permission to occasionally lift 10 pounds. He estimated that the claimant could earn $160 per week, based upon an $8 per hour, 20 hour per week rate. The claimant alleged that he tried to find work, but could only recall two places that he contacted about possible employment.
The trial commissioner concluded that the claimant has a very limited part-time light duty work capacity of $160 per week, and that he has not actively attempted to find suitable work. The claimant had not submitted sufficient evidence that his physical condition prevents him from being hired anywhere. The trier thus denied the claim for continuing total disability benefits and ordered that the respondents’ Form 36 remain approved, while authorizing continued pain management treatment. The claimant has appealed that decision.
The claimant’s primary argument on appeal is that, functionally, the claimant is totally incapacitated pursuant to the doctrine enunciated in Osterlund v. State, 135 Conn. 498 (1949), and its progeny. He contends that the evidence and the subordinate findings of fact compel such a legal conclusion. In his view, there is no occupation he can reasonably pursue based upon his lack of transferable skills, making his labor unmarketable, and additional work searches futile. The claimant wants this board to adopt the “odd lot” doctrine, which states that a worker is totally disabled if the only services he can perform are so limited in quality, quantity, or dependability that no stable labor market exists for them. The burden would then shift to the employer to show that there is some job in the labor market that the claimant is capable of performing, rather than requiring the claimant to prove the “universal negative” of not being employable at any work. Brief, p. 12.
The trial commissioner is the finder of fact in a workers’ compensation case, and is the sole judge of evidentiary credibility. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). This board does not second-guess the inferences that a trier of fact has drawn from the evidence on review. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). If there is evidence in the record to support his or her findings, they will be upheld on appeal. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). Further, we will not disturb the trier’s legal conclusions unless they result from an incorrect application of the law to the facts, or an inference illegally or unreasonably drawn from them. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Fair, supra, 539-41.
A claimant is totally disabled under § 31-307 C.G.S. when he is unable, because of his injuries, to work at his customary calling or any other occupation which he might reasonably pursue. Rayhall v. Akim Co., 263 Conn. 328 (2003); Osterlund, supra, 505. In Osterlund, our Supreme Court explained, “A finding that an employee is able to work at some gainful occupation within his reasonable capacities is not in all cases conclusive that he is not totally incapacitated. If, though he can do such work, his physical condition due to his injury is such that he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.” Id., 506-507; see also, Covaleski v. Casual Corner, 4419 CRB-1-01-7 (June 27, 2002). The determination as to whether a claimant offers no marketable labor remains factual. See Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002). A commissioner may decide that, given a claimant’s transferable skills and limitations on his abilities, a work search would be futile, thus excusing its nonperformance. Id.; Hidvegi v. Nidec Corp., 3607 CRB-5-97-5 (June 15, 1998).
Though it may be applied in many other states, the burden-shifting element of the “odd lot” doctrine as formulated and advocated by the claimant is not codified as part of our statutory law. This board may not redraw the legal boundaries defined by a rich history of case law that interprets § 31-307 C.G.S., as well as §§ 31-308(a) and 31-308a C.G.S. See Hanson v. Transportation General, Inc., 245 Conn. 613, 622 (1998)(policy arguments in favor of replacing “right to control” test with “relative nature of the work test” are for legislative, not judicial, consideration). The burden remains on the claimant to demonstrate total incapacity by some evidentiary means, although cases may arise in which a respondent chooses to introduce evidence of available jobs in an effort to refute a claimant’s allegation that no suitable work exists.
We also disagree with the notion that our law requires the proof of a “universal negative” in the sense that a claimant with a theoretical light duty capacity must then accomplish the daunting task of demonstrating the complete unavailability of any job. Instead, our total and partial disability statutes give the factfinder room to extrapolate unemployability from various sources. These include a claimant’s inability to find work after making a reasonable attempt to do so, a vocational expert’s report, or considerations such as educational background, language fluency, and medical restrictions implicating physical posture, lifting, stamina, sleep disorders, and pain tolerance. See Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 295 (1999); Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996); Richardson v. Bic Corporation, 4413 CRB-3-01-7 (August 5, 2002); Devanney, supra; Rodrigues v. American National Can, 4043 CRB-5-99-4 (July 26, 2000); Hidvegi, supra; Merola v. The Jackson Newspaper, Inc., 3344 CRB-3-96-5 (October 27, 1997). The mere introduction of evidence capable of satisfying the Osterlund test does not automatically establish its credibility. Murray v. Mass Mutual Life Ins. Co., 4590 CRB-1-02-11 (November 20, 2003). If a claimant does not attempt to find light duty employment, a trier entering a finding of total disability would need to find credible other grounds for declaring a claimant’s labor unmarketable.
In stating that the claimant had not submitted sufficient evidence to indicate that no one would employ him based upon his physical work restrictions, the trier did not apply an improper legal standard. We read this finding in conjunction with the other findings, and interpret it accordingly. Those findings cite several expert opinions that identify a work capacity, albeit limited, and note that the claimant had not actively sought employment within those restrictions.
Contrary to the claimant’s assertion, there is support in the evidence for the trier’s finding that the claimant had some transferable skills. For example, Michael Dorval identified “highly refined mechanical skills,” including the ability to perform complex mechanical analysis, and stated that the claimant “retains most of the abilities instilled by his past work with the exception of the acute exertional demands encompassed by lifting and bending.” Respondent’s Exhibit 4. After doing a labor market survey, Dorval identified 15 job opportunities in the vicinity of the claimant’s hometown commensurate with his needs, including eight that utilize his past work experience. The evidence also established that the claimant had a high school education, runs errands, does yard work, and performs chores around the house. See, e.g., Claimant’s Exhibit I, p. 57. The trier was entitled to give weight to such evidence, and permissibly chose not to rely on Dr. Cohen’s opinion that the claimant was practicably unemployable because he would not be able to maintain day-in, day-out consistency as a part-time worker in an adapted work setting. See, id., p. 69; see also, Claimant’s Exhibit H.
The presence of these identifiable job skills thus left the question open as to whether the claimant could be gainfully employed. The trier was not required to presume as a matter of law that a reasonably diligent job search would be futile, thereby excusing the claimant for not having attempted one. Job searches may not be required to prove entitlement to total disability benefits; see Shimko, supra (discussing absence of job search requirement in § 31-308(a) to demonstrate unavailability of work); but if a claimant is found to have some work capacity, a trier in his fact-finding discretion may reasonably determine that the claimant has not proven himself totally disabled until he has tried and failed to find employment. The record here contains sufficient evidence to support the trial commissioner’s findings and legal conclusions. Thus, we find no error.
The trial commissioner’s decision is hereby affirmed.
Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur.
1 We note that the appellant in this matter was granted extensions of time to file both Reasons of Appeal and an appellate brief. BACK TO TEXT