CASE NO. 5159 CRB-4-06-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 22, 2007
ANTONIO B. LEANDRES
MARK IV CONSTRUCTION, INC.
ST. PAUL FIRE AND MARINE
SECOND INJURY FUND
The claimant was represented by Steven D. Jacobs, Esq., Jacobs, Jacobs & Shannon, P.C., 265 Orange Street, New Haven, CT 06510.
The respondents were represented by Timothy G. Zych, Esq., Law Offices of Cynthia M. Garraty, Crossroads Corporate Park, 6 Devine Street, First Floor, North Haven, CT 06473.
The respondent Second Injury Fund was represented by Lawrence G. Widem, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-120.
This Petition for Review from the November 6, 2006 Finding and Dismissal of the Commissioner acting for the Fourth District was heard April 27, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this appeal has claimed that he is totally disabled as a result of a compensable injury. Following a formal hearing the trial commissioner determined that he had a work capacity and thus, was not entitled to benefits under § 31-307 C.G.S. The claimant appeals that decision, asserting that consistent with the precedent in Osterlund v. State, 135 Conn. 498 (1949) that he “out-Osterlunded Osterlund.” Claimant’s Brief, p. 10. Our review of the record indicates that the trial commissioner was presented with conflicting evidence as to whether the claimant had a work capacity. Therefore, we affirm her Finding and Dismissal and dismiss this appeal.
A number of facts are undisputed. The claimant was born in Portugal in 1950 and moved to the United States at the age of 17. He has little formal education and was employed since the age of 19 doing construction work on sewer pipes and roads. He started working for the respondent Mark IV Construction at age 43 and was given some supervisory responsibilities. On or about July 31, 2002 the claimant’s condition in both knees became such that he could not work at his current job. He filed a Form 30C asserting compensable repetitive trauma in October 2002. In September 2002 the claimant underwent bilateral knee arthroplasty. Following that surgery the claimant’s treating physician, Dr. Peter Boone, determined the claimant had a permanent partial disability for each knee. On January 2, 2004 Dr. Boone opined that the claimant had a 40% impairment of the right knee and a 50% impairment of the left knee. The claimant’s knee injuries had been deemed compensable as a result of a November 7, 2003 Finding and Award. The trial commissioner took administrative notice of the evidence submitted at the formal hearing that determined compensability.
Subsequent to the finding of compensability the claimant sought a determination that he was entitled to temporary total disability benefits. A formal hearing was held on this claim commencing on October 14, 2004 and continuing to December 9, 2004, January 31, 2005 and December 6, 2005, with the record closing on July 7, 2006. The trial commissioner reached the following factual conclusions on that issue.
The trial commissioner noted that the claimant testified that he needed to take medication for his pain, that entering or leaving a car caused great pain and “he constantly adjusts his sitting position in a chair.” Findings, ¶ 18. The trial commissioner noted that she had observed the claimant sit for an extended period at the hearing sessions without complaint. Findings, ¶¶ 19-21. She also noted the claimant expressed an interest in returning to work and a strong interest in mechanics, Findings, ¶ 24 and speaks fluent English. Findings, ¶¶ 25.
A number of expert witnesses offered testimony on whether the claimant was totally disabled. Dr. Peter Jokl (who had performed a medical examination on behalf of the respondents) opined that the claimant had a capacity for sedentary, light duty work. Two vocational experts examined the claimant. The claimant’s expert, Debra Methot, examined the claimant in March 2004. She described the claimant as punctual, but having an achievement level at the third grade level for reading and on the fifth grade level for math. She also administered the Valpar Work Test which she describes as a commercial work sample system which tests method, time and motion. She described the claimant as more accurate than fast on this test. She did not conduct a labor market survey for the types of work which might be available for the claimant. She concluded that the claimant was not a competitive worker, in part as she opined it was unrealistic to expect the claimant to return to work earning less than he was earning before his injury.
The respondent’s expert, Michael Dorval, reached a different conclusion as to the claimant’s employability. He examined the claimant at his Windsor office in December 2003 and issued a January 21, 2004 report which noted the claimant had driven directly to his office in Windsor from his home in Monroe and he did not exhibit impairment in his ability to stand or work at the interview. He also noted the claimant drove a GMC pickup truck and did snow plowing for family and friends. Mr. Dorval tested the claimant’s IQ as 70, his arithmetic skills as average, and his reading skills in the second percentile. He found the claimant was good at remembering things that had been said 45 minutes earlier, but was a poor historian regarding his injury. After reviewing a March 31, 2006 letter from Dr. Boone, Mr. Dorval testified at his April 24, 2006 deposition that the claimant had a light duty work capacity. He had previously testified the claimant could return to work at such occupations as bench assembler of small products, cashier, inspector of small products, hand packager, parking lot attendant, security guard, courier, drill press operator or grinder operator. Mr. Dorval performed a labor market survey and further investigated the possibility the claimant could obtain remedial training to improve his reading skills. His conclusion was that the claimant could earn between $300 and $520 per week without vocational rehabilitation and $360 to $600 per week with vocational rehabilitation.
Mr. Dorval did not include in his report any physical changes in the claimant’s condition that occurred after December 2003. The trial commissioner did note in her subordinate facts that the claimant had resumed treating with Dr. Boone in the fall of 2005 with a worsening right knee condition, and had been treating with Dr. Boone’s partner, Dr. Gerald Girasole, for pain running down his left leg, which was worse than when he had been examined by Mr. Dorval.
Based on the aforementioned evidence and finding of subordinate facts the trial commissioner concluded the opinions of Dr. Boone, the claimant’s treating physician, and Dr. Jokl were credible with regard to the claimant having a light duty capacity. The trial commissioner also found the opinions of Mr. Dorval credible on the issue of employability of the claimant, finding there was an availability of employment and remedial training. She also noted the claimant’s ability to sit through long hearings, drive a long distance, testify without an interpreter and drive a snowplow. As a result she determined the claimant had not met his burden of establishing he was unemployable and dismissed his claim for total disability benefits.
The claimant filed a Motion to Correct to add additional findings concerning his increased level of pain and his educational and vocational limitations. The trial commissioner denied these corrections and the claimant has pursued this appeal.1
We commence our consideration of this appeal by considering what our standard of review is when we consider a case involving § 31-307 C.G.S. on appeal. Earlier this year we delineated that standard in our opinion in McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007):
We begin by stating that the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakesles Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). McMahon, Id.
Our inquiry must focus on whether the trial commissioner was presented with sufficient evidence to conclude that the claimant had a work capacity. We note at the outset that we have reiterated that it is the claimant’s burden to prove that they are totally incapacitated Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). We also have rejected the concept of the “odd lot doctrine” which is suggested by the claimant in this matter. See Gombas v. Custom Air Systems, Inc., 4996 CRB-4-05-9 (September 20, 2006).
In her Finding and Dismissal the trial commissioner focused on three separate sources of evidence as to the claimant’s work capacity: a) reports from physicians, b) Mr. Dorval’s vocational assessment and c) the claimant’s demeanor testimony. We must examine this evidence to ascertain if it supports the trial commissioner’s conclusions. We can expeditiously address the medical evidence. Both Dr. Boone and Dr. Jokl opined that the claimant had a sedentary work capacity. The claimant does not challenge these conclusions. His central argument is that Mr. Dorval ignored evidence as to the claimant’s pain and deteriorating condition in his vocational assessment.
Even when a claimant had some sedentary work capacity, we have determined in some cases the circumstances were such that the claimant could not reasonably maintain the “tenets of employability.” Howard v. CVS Pharmacy, Inc., 5063 CRB-2-06-3 (April 4, 2007); Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006). In those cases the trial commissioner determined that the vocational expert who testified on the claimant’s behalf was more credible than the respondent’s expert. In the present case, the trial commissioner reached a different conclusion as to the weight of the evidence. We must defer to the trial commissioner’s determination in such “dueling expert” cases Dellacamera, supra, unless we conclude such a determination is “clearly erroneous” by lacking evidence, misapplying the law or reaching an improper inference Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).
The trial commissioner made specific findings based on the evidence submitted by Mr. Dorval. Mr. Dorval identified specific jobs he believed the claimant could perform based on his medical condition, educational level and marketable skills. Since the trial commissioner’s finding of employability is based specifically on probative evidence, we cannot find her conclusion herein “clearly erroneous.”
We do take notice of the claimant’s argument that the Dorval report, as it was prepared on January 21, 2004 subsequent to a December 2003 examination, may not take into account the claimant’s present medical condition. However, the trial commissioner specifically noted that issue in Finding, ¶ 54 of her Finding and Dismissal. As a response to this concern, the trial commissioner cited more recent medical testimony opining that the claimant had a work capacity Finding, ¶ 50. She also cited his demeanor in participating in the hearings before her as grounds for her conclusions. Findings, ¶¶ 19-21. This evaluation is particularly impervious to appellate review. In Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) we considered a similar situation and pointed out “[c]ertainly the trial commissioner can evaluate the responses of the claimant at the formal hearing to reach a determination as to whether the claim is meritorious and the claimant’s medical condition objectively so debilitating as to warrant a finding of total disability.” Id. We will infer that the trial commissioner concluded that the claimant’s physical condition had not deteriorated so significantly from 2003 as to render Mr. Dorval’s opinions unreliable. We believe inferences based on the trial commissioner’s personal observation are within her exclusive dominion. An appellate panel cannot substitute its judgment for that of the trier of fact on such matters.
We believe some discussion is warranted on the argument the claimant “out-Osterlunded Osterlund.” In Osterlund, supra, the Supreme Court established the standard of total incapacity as being an inability to earn money “in any occupation he may reasonably pursue.” Id., 505-506. The Supreme Court in that case did not intervene to find compensability; rather they overturned the commissioner’s decision that one could not draw unemployment benefits and seek benefits for total incapacity at the same time. Therefore, they remanded the matter for a new factual determination. Id., 506-507. Unlike Mr. Osterlund, who disputed the legal standard applied by the trial commissioner, the present claimant is essentially disputing the trial commissioner’s factual determination. We believe the Appellate Court’s reasoning in Bidoae v. Hartford Golf Club, 91 Conn. App. 470 (2005) is dispositive of this line of argument, upholding the trial commissioner’s dismissal of a § 31-307 C.G.S. claim since “. . . she has not shown that she has made adequate attempts to secure gainful employment or that she truly is unemployable.” Id., 483.2
We also note that the claimant’s expert, Debra Methot, based part of her rationale for the claimant’s total incapacity that it was unrealistic to expect the claimant to return to work earning less than he was earning before his injury. We do not believe the Osterlund standard should be construed that an inability post-injury to earn an equivalent amount of money as prior to an injury equates to “total incapacity.” Often for an injured claimant, an “occupation he may reasonably pursue” will be less remunerative than his prior employment. Since a claimant must meet the statutory standard of “total incapacity to work” to qualify for § 31-307 C.G.S. benefits, we believe he cannot decide less lucrative employment is inherently unreasonable to pursue while simultaneously asserting total incapacity.
The claimant may well feel that he has an equally compelling case for total disability as the claimant in Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998). The trial commissioner in Hidvegi reached a factual finding in the claimant’s favor, however. Since it is a factual decision whether a claimant can perform marketable labor, Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002), and we cannot revisit the trial commissioner’s findings of fact, Dengler, supra, we are obligated to affirm the trial commissioner and dismiss this appeal.
Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.
1 We do not believe that had the claimant’s Motion to Correct been granted it would have changed the outcome of this case. Therefore, we find no error in its denial. Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (December 17, 2003). BACK TO TEXT
2 While a job search is not a prerequisite to an award of total disability benefits, Dellacamera, supra, “It however does provide clear evidence as to whether the claimant has met the standard for total disability.” Howard, supra. Both in the present case and in Bidoae, supra, the claimant’s failure to seek gainful employment weighed against their claim before the trial commissioner. “A claimant who fails to show efforts to find work is, to some extent, taking a risk. Such a claimant cannot presume that the trier of fact will rely on other considerations such as educational background, training, age, and physical/medical restrictions to declare her totally incapacitated.” McMahon, supra. BACK TO TEXT