State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Bond v. The Monroe Group, LLC

CASE NO. 5093 CRB-3-06-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 3, 2007

WENDELL BOND

CLAIMANT-APPELLANT

v.

THE MONROE GROUP, LLC

EMPLOYER

and

FIREMAN’S FUND INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondents were represented by Lawrence Pellett, Esq., McGann, Bartlett and Brown LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the May 10, 2006 Finding and Orders by the Commissioner acting for the Third District was heard November 17, 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.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This appeal presents us with another occasion to explain our role as an appellate body. The claimant contests the results of a formal hearing wherein he was denied in his effort to obtain permanent partial disability benefits, temporary total disability benefits, temporary partial disability benefits and authorization of his current doctor as a treating physician. The trial commissioner awarded the claimant § 31-308(a) C.G.S. benefits for a short period following his January 3, 2002 accident, but denied the other relief sought. The claimant argues that this was contrary to the evidence presented. Our review indicates evidence was presented that supported the trial commissioner’s findings of fact. As we cannot intrude on a trial commissioner’s weighing of the evidence, we affirm this finding and order and dismiss the appeal.

This case is very similar to a case we considered in 2006, Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006) in which another pro se appellant challenged the sufficiency of evidence supporting the trial commissioner’s findings. In Dudley we pointed out “[t]his 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 scope of inquiry in this case is similar to our evaluation of the record in Dudley “[w]e must therefore review the Finding and Dismissal solely to ascertain if the facts found are supported by evidence.”

In this matter the trial commissioner held a formal hearing on November 9, 2005 which was continued until January 17, 2006 for the filing of Proposed Findings of Facts. In his Findings and Orders of May 10, 2006 he found the claimant was employed on January 3, 2002 by a temporary job service at a factory in North Haven when he suffered arm and chest pain lifting an object. He found the claimant promptly reported the accident and was treated and returned to work, but on January 4 he could not perform the work. He started treating with Dr. Mark Altman on January 9, 2002 who diagnosed brachial plexitis of the left shoulder and placed a 20-pound lifting restriction on the claimant. On January 30, 2002 Dr. Altman cleared the claimant for light duty work with a 10 to 15 pound lifting restriction, but also issued a disability slip deeming the claimant totally disabled until February 25, 2002. On that date Dr. Altman cleared the claimant for full duty. A September 14, 2002 MRI showed some mild disc protrusions, but on October 22, 2002 Dr. Altman determined the claimant had reached maximum medical improvement with a zero percent permanent partial disability rating for the left shoulder and cervical spine.

Following this examination Dr. Altman ordered an EMG test but the respondents did not authorize it, so the claimant paid for it from private insurance. That test and a nerve conduction test were performed by Dr. Barry Gordon. The test of the left arm showed mild abnormality; the test of the left leg yielded normal results. The claimant then began treating with Dr. Margaret E. O’Donoghue. She diagnosed brachial plexitis and started treating the claimant with medications. On September 24, 2004 she opined that the claimant had a 26% permanent partial impairment of the left shoulder due to pain. The trial commissioner also made findings as to the claimant’s economic situation, finding that he had received unemployment compensation for two weeks in January 2002 and then again from March 4, 2002 to November 9, 2002. The commissioner also found that the claimant had been employed by the Lee Company as a spot welder since November 2002 at a higher rate of pay than he earned at the time of the accident.

Based on these subordinate facts the trial commissioner determined a work related injury had occurred on January 3, 2002 and the claimant was unable to perform the light duty work he was cleared by his treating physician to perform until February 25, 2002. Therefore he awarded § 31-308(a) C.G.S. benefits from January 3, 2002 until February 25, 2002. In regards to the issue of permanent impairment the commissioner determined that Dr. Altman’s rating was more credible than Dr. O’Donoghue, thus finding the claimant did not have permanent impairment. He also denied authorization of Dr. O’Donoghue as a treating physician.

The claimant filed a Motion to Correct which was denied in its entirety. In support of his appeal he submits a letter expressing his opinion that Dr. Altman’s permanency rating was reached prematurely; a letter claiming a discrepancy between the trial commissioner’s findings regarding the issue of temporary partial disability and the deposition transcript of Dr. Altman; and various medical reports the claimant believes support a finding of permanent partial disability. We will deal separately with each claim of error.

In regards to the evidence submitted by Dr. Altman regarding permanent impairment our inquiry is solely to ascertain if it constitutes competent medical evidence. We believe that it does. His October 22, 2002 report is on a Commission form and the opinion is offered to a “reasonable medical probability.” See Respondents’ Exhibit 2. Counsel for the claimant had the opportunity to challenge this evidence at Dr. Altman’s deposition.1 Whether Dr. Altman had treated the claimant for a sufficient period to reach this conclusion was an issue for the trial commissioner to decide. “‘As the finder of fact, the trier has the sole authority to decide what evidence is reliable and what is not . . .’ Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004).” Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006).

Our precedent in Arnott, supra is also dispositive of the issue as to whether Dr. Altman’s rating as to permanency should be credited over Dr. O’Donoghue’s. “Where the medical opinions are in conflict, the trial commissioner’s determination must stand so long as there is evidence to support it. Carney-Bastrzycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004).” Arnott, supra. Similar to the situation in Arnott, the trial commissioner found one doctor more credible than the other, and that is a decision within his exclusive dominion.2

Finally, we seek to address the alleged “discrepancy” between Dr. Altman’s testimony as to whether the claimant was totally disabled in 2002 and the trial commissioner’s findings. We recently outlined the standard to award such benefits in Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). “We consistently have held it is the claimant’s burden to establish they are totally disabled and entitled to benefits under our statute. See Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 454 (2001) and Gombas v. Custom Air Systems, Inc., 4996 CRB-4-05-9 (September 20, 2006).” Hernandez, supra. Dr. Altman testified at his deposition that the claimant had a light duty work capacity, but he determined he had been totally disabled in regards to the work the claimant had been performing. Respondents’ Exhibit 1, pp. 20-21. The medical reports prepared by the treating physician also represent the claimant had a work capacity. See Claimant’s Exhibits B & C. We do not find error on the part of the trial commissioner concluding the claimant had a work capacity during the period in question.

We also uphold the trial commissioner in regards to whether Dr. O’ Donoghue is an authorized treating physician. We have recently pointed out that a claimant who initiates treatment with a new physician without obtaining a referral from a treating physician or prior authorization from the Commission assumes the risk the trial commissioner will not retroactively authorize such treatment at a later date. See Anderson v. R&K Spero Company, 4965 CRB-3-05-6 (February 21, 2007).

In summary, the trial commissioner’s findings were all supported by evidence in the record. Accordingly, we must dismiss this appeal and affirm the trial commissioner’s Finding and Orders.

Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this decision.

1 The claimant argues that he does not believe Dr. Altman actually signed his October 22, 2002 report. He raised this issue at the formal hearing and we can infer the trial commissioner determined that the document was authentic. This constitutes a factual issue we cannot revisit on appeal. BACK TO TEXT

2 In his submission of documents supporting his appeal, the claimant submitted a medical assessment from Dr. Altman dated September 26, 2006. There is no accompanying evidence demonstrating that the claimant could not have submitted this evidence prior to the formal hearing, therefore it cannot be considered as per the holding of Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 57-58 (2001). BACK TO TEXT

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