State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
Home News RSS News QUICK Find Index Search E-Mail
General Information Glossary Law CRB Opinions Workers' Compensation Commission Downloadable Forms and Publications Links

Bazelais v. Honey Hill Care Center

CASE NO. 5191 CRB-7-07-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 21, 2008

JACQUELINE BAZELAIS

CLAIMANT-APPELLEE

v.

HONEY HILL CARE CENTER

EMPLOYER

and

ROYAL & SUNALLIANCE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Daniel Benjamin, Esq., Benjamin & Gold, 350 Bedford Street, Suite 403, Stamford, CT 06901.

The respondents were represented by Joseph Passaretti, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the January 12, 2007 Articulation of Finding & Order and Ruling on Respondents’ Motion to Articulate of the Commissioner acting for the Seventh District was heard January 25, 20081 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the January 12, 2007 Articulation of Finding & Order and Ruling on Respondents’ Motion to Articulate of the Commissioner acting for the Seventh District. The respondents contend that the trial commissioner failed to comply with the remand order. We find no error, and affirm the decision of the trial commissioner.

The following background information is pertinent to our review. The claimant, who was employed as a nurse’s aide for the respondent, was injured on May 15, 2000 when she suffered a herniated disc after being kicked and knocked down by a patient. The claimant treated conservatively for approximately a year and ultimately underwent a spinal fusion. The claimant never returned to work after the injury. On June 15, 2004, the claimant underwent an Independent Medical Examination with Ronald A. Ripps, M.D., who determined that the claimant suffered from “[f]ailed back rehabilitation with persistent radicular symptoms” but concluded that the claimant had a sedentary work capacity “based on the fact that she is comfortable sitting.” Respondents’ Exhibit 1. The respondents filed a Form 36 on the basis of this report, which was contested by the claimant.

A formal hearing was held on February 3, 2005 before the Commissioner for the Seventh District, who heard testimony from the claimant, the claimant’s son, and the claimant’s treating physician, Silvia Knoploch, M.D. A Finding and Order was issued on October 14, 2005. The trial commissioner found credible the testimony of the claimant’s son, a private in the U.S. Army, who testified regarding the activities which his mother could perform prior to the injury, and the difficulties she experienced with such basic everyday tasks as shopping, driving, laundry and cooking subsequent to the injury. He also testified that his mother was in constant pain and had trouble walking and getting out of bed by herself.

The trial commissioner also found credible the testimony of the claimant, who testified that she is in constant pain and is reliant upon Oxycontin in order to function, and that she is always tired from the medication. The claimant testified that she cannot walk without assistance and cannot drive a car because her leg shakes. The trial commissioner found that the claimant attempted to return to work subsequent to the injury but potential employers “laughed at her because of her overall condition and her inability to communicate effectively in the English language.” Findings, ¶ 10. The trial commissioner similarly found that the claimant, who was born in Haiti, “has a limited command of the English language,” Findings, ¶ 6, and her “education, even in her native land, is limited.” Findings, ¶ 11.

The claimant’s treating physician, Silvia Knoploch, M.D., testified that after the surgery, the claimant was left with neurological deficits, nerve damage, and lifting and bending restrictions. February 3, 2005 Transcript, pp. 31-33. Dr. Knoploch also testified that the claimant continued to experience balance problems, difficulty walking, and leg spasms. Id. The trial commissioner found credible Dr. Knoploch’s opinion that the claimant “did not make a full recovery from the surgery and suffers from Chronic Pain Syndrome.” Findings, ¶ 16. The trial commissioner noted that the claimant, in addition to taking Oxycontin, also takes Celebrex and Paxil, and found credible Dr. Knoploch’s opinion that the claimant is suffering from “a state of reactive depression.” Findings, ¶ 17.

In addition, the trial commissioner found that both Dr. Ripps, as previously mentioned, and Mark E. Wilchinsky, M.D., who performed a commissioner’s examination on October 22, 2004, had concluded the claimant had reached maximum medical improvement with restrictions and had a sedentary work capacity. However, in his report of October 22, 2004, Dr. Wilchinsky also indicated that the claimant suffered from a “failed back syndrome” and stated that he did not feel the claimant “would be capable of doing any type of job that involves lifting, bending, climbing, or repetitive motions involving her lumbar spine.” Respondents’ Exhibit 2. The trial commissioner found both Drs. Ripps’ and Wilchinsky’s opinions credible and also noted that Dr. Wilchinsky had opined that the claimant “may require narcotic medications well into the future,” Findings, ¶ 13, and would need to be retrained even for sedentary work. Findings, ¶ 14.

The trial commissioner concluded that the medical opinions of Dr. Knoploch and Dr. Wilchinsky were more persuasive than that of Dr. Ripps, observing that the opinions of Drs. Knoploch and Wilchinsky “in effect keep the Claimant temporarily totally disabled.” Findings, ¶ A. The trial commissioner also determined that, “even more critical, I find the testimony, appearance, and demeanor of the Claimant at the formal hearing leads me to conclude that she, in fact, is still temporarily totally disabled,” Findings, ¶ B, and stated that his decision was “based on the Claimant’s education, work experience, physical conditioning, and her need to use narcotic medications and other potent drugs.” Findings, ¶ C. On the basis of these determinations, the trial commissioner denied the Form 36.

The respondents filed a Petition for Review, Motion to Correct and Motion for Articulation on October 26, 2005. The trial commissioner granted two of the six proposed corrections in the Motion to Correct, and added the word “However” to the beginning of Findings, ¶ 13, and the word “Also” to the beginning of Findings, ¶ 14, in response to the Motion for Articulation. The respondents then pursued an appeal, contending that the trial commissioner’s conclusions were impermissibly drawn from the subordinate facts, and the trial commissioner had exceeded his authority as fact finder, improperly denied the respondents’ Motion to Correct, and failed to adequately respond to the respondents’ Motion for Articulation.

The claim ultimately came before this board, and on October 25, 2006, we remanded the matter to the trial commissioner, as we essentially agreed with the respondents that the trial commissioner’s findings as written did not provide a sufficient basis for appellate review.2 Observing that Dr. Knoploch and Dr. Wilchinsky appeared to disagree on the issue of whether the claimant had a sedentary work capacity, we stated, “[t]he trial commissioner could have determined that he agreed with Dr. Wilchinsky regarding certain subordinate facts but found Dr. Knoploch more persuasive on the issue of total disability, but for an appellate body to make such an inference would amount to putting words in the trial commissioner’s mouth.” Bazelais v. Honey Hill Center, 5011 CRB-7-05-10 (October 25, 2006).

The board also noted that, “the verbiage used that the doctor’s opinions ‘in effect keep the Claimant temporarily totally disabled’ is sufficiently vague as to force us to speculate as to what factors led the trial commissioner to reach that conclusion.” Id. Finally, the board determined that the trial commissioner in his Finding and Order had failed to distinguish between the concepts of medical disability and vocational disability.

In light of the ambiguous language contained in the Finding and Order, this board remanded the matter to the trial commissioner with instructions to provide an articulation as to “(1) which medical evidence the trial commissioner found persuasive and credible; and (2) whether the finding of total disability was based on a finding of medical disability or a finding of vocational disability.”Id.

On January 12, 2007, the trial commissioner issued his Articulation of Finding & Order and Ruling on Respondents’ Motion to Articulate (“Articulation”), stating that he found the medical opinion of Dr. Knoploch more credible than the opinions of either Dr. Wilchinsky or Dr. Ripps. The trial commissioner noted that Dr. Knoploch had “opined that the claimant was totally disabled both as of the date of the formal hearing and prior thereto,” Findings, ¶ B, and referenced the “numerous” medical reports of Dr. Knoploch contained in Claimant’s Exhibits A and B attesting to the claimant’s ongoing disability. The trial commissioner added that his conclusions regarding the claimant’s total disability were derived from both the claimant’s testimony and his observations of her at the formal hearing, and explained that his conclusions relative to the claimant’s ability to work had been based on an assessment of medical disability and not vocational disability.

The respondents again appealed, contending the trial commissioner improperly used the Motion for Articulation to change his original factual findings, and arguing that the trial commissioner failed to “follow the mandate of the Compensation Review Board. Instead of articulating his original order, he simply substituted and modified his previous factual findings so that he could rationalize a contradictory ruling.” Appellant’s Brief, p. 9.

In support of this position, the respondents point to Findings, ¶ A, of the trial commissioner’s Articulation, in which he indicated he found the opinion of Dr. Knoploch more credible than the opinions of Dr. Wilchinsky or Dr. Ripps, and contrast this Finding with Findings, ¶ A, of the October 14, 2005 Finding and Order, in which the trial commissioner stated, “the medical opinions of Drs. Knoploch and Wilchinsky in effect keep the Claimant temporarily totally disabled and are more persuasive than the opinion of Dr. Ronald Ripps.” The respondents contend that the opinions of Drs. Knoploch and Wilchinsky cannot logically be reconciled because they are inconsistent.

The respondents also take issue with Findings, ¶ B, of the Articulation, wherein the trial commissioner states that, “Claimant’s Exhibits A and B contain numerous medical reports wherein Dr. Knoploch opines that the Claimant is totally disabled.” The respondents assert that the trial commissioner’s claimed reliance upon these exhibits in his Articulation was in error, because “[t]he Trial Commissioner’s original findings never made any mention of Dr. Knoploch’s written reports, thus confirming that he did not rely upon them in making his original legal determinations.” Appellant’s Brief, p. 11. In addition, the respondents point out that Claimant’s Exhibits A and B actually contain a total of fifty-seven reports, and the trial commissioner failed to specify which of those reports he found persuasive or credible. Id., p. 12.

Finally, the respondents assert that Dr. Knoploch, in her testimony at trial, stated that the claimant has a sedentary work capacity, in which case, “the Trial Commissioner cannot disregard the fact that Dr. Knoploch clarified and partially negated those fiftyseven medical reports by testifying that she was of the opinion that the claimant had a sedentary work capacity.” Id., p. 13.

In order to evaluate the merits of the respondents’ assertions regarding the alleged deficiencies of the trial commissioner’s Articulation, we turn first to an examination of Practice Book § 60-5, which provides that, “[i]f the [appellate] court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.” In the workers’ compensation forum, remand has generally been considered the appropriate remedy when “the commissioner’s finding and award contained inconsistent findings that were ambiguous and reasonably susceptible of clarification.” Fantasia v. Milford Fastening Systems, 86 Conn. App. 270, 271 (2004), cert. denied, 272 Conn. 919 (2005). “Whether a case should be remanded, and the scope of that remand, presents questions to be determined by the compensation review board in the exercise of its sound discretion.” Fantasia, id., 278, quoting Schick v. Windsor Automotive Division/Barnes Group, Inc., 34 Conn. App. 673, 675 (1994).

However, it is incumbent upon the trial commissioner to comply with the scope of the remand. “An articulation is not an opportunity for a trial court to substitute a new decision nor to change the reasoning or basis of a prior decision.” Koper v. Koper, 17 Conn. App. 480, 484 (1989). Rather, the expectation is that the trial commissioner will provide clarification for the perceived ambiguous factual findings, as the purpose of an articulation is “to supply an explanation of [the trial court’s] reasoning … or a weighing of the statutory criteria.” Id. In short, “the trial court should not deviate from the directive of the remand.” Fantasia, supra, 284, quoting Matey v. Estate of Dember, 85 Conn. App. 198, 206 (2004).

It is within the context of this analytical framework that we turn first to an examination of the respondents’ contentions regarding the allegedly “contradictory” opinions of Drs. Knoploch and Wilchinsky relative to the extent of the claimant’s disability. At the outset, we must concede that Dr. Wilchinsky, in his report of October 22, 2004, does ultimately state that the claimant has a sedentary work capacity, whereas Dr. Knoploch, in the majority of her written reports, does not. We note that particular attention was paid at trial to Dr. Knoploch’s conclusion in her medical report dated November 16, 2004, written in response to claimant’s counsel’s request that she review the October 22, 2004 report of Dr. Wilchinsky, in which she stated, “knowing this patient so well that her lack of skills in any other area but as a nurse’s assistant and her limitations with the English language coupled with the fact that she is always in some degree of pain and requires strong pain killers, that her ‘true’ work capacity is nill [sic] in the local job market.” Claimant’s Exhibit A.

In addition, Dr. Knoploch testified extensively regarding the residual effects of the claimant’s injury, attesting to the presence of neurological deficits and nerve damage, February 3, 2005 Transcript, p. 31, lifting restrictions and difficulties walking, id., p. 32, chronic pain syndrome, id., spasms and shaking in her right foot and loss of range of motion of the back, id., p. 33, lack of endurance, id., p. 34, and a fluctuating pain status “anywhere from mild to severe.” Id., p. 36. The doctor opined that the claimant has a functional impairment as to walking, performing repetitive tasks, lifting, and bending, id., pp. 3638, and would require rest periods every ten minutes for any employment which involved standing, id., pp. 38-39, and rest periods every thirty to forty-five minutes while sitting upright. Id., p. 40.

Dr. Knoploch also testified at length regarding the medication regimen she had prescribed for the claimant, consisting of the narcotic Oxycontin along with Celebrex and Paxil. Id., p. 41. The doctor explained that the Oxycontin and Celebrex were for pain management but the Paxil was for the claimant’s reactive depression, which, in the doctor’s opinion, has occurred because of the claimant’s chronic pain syndrome. Id., pp. 42-43. When queried by claimant’s counsel, the doctor defined reactive, or situational, depression as a condition “which typically is related to an event, an extraordinary event, in someone’s life that causes some loss, whatever that loss might be: emotional, physical or financial;….” Id., p. 43.

After Dr. Knoploch had testified regarding the claimant’s current condition and limitations, claimant’s counsel then questioned the doctor further regarding her report of November 16, 2004. In this report, the doctor had stated,

In response to your letter and after reviewing Dr. Wilchinsky’s medical report, theoretically, Ms. Bazelais has a sedentary work capacity with lumbar spine restrictions. By that, I mean no lifting, carrying, pushing, or pulling greater than 10 pounds, as well as the ability to change positions as needed and avoidance of any prolonged still positions, such as sitting, standing, etc., as well as avoidance of any bending and twisting at the waist and any repetitive tasks with either upper or lower body. (Emphasis added.)

Id., p. 44.

When claimant’s counsel asked Dr. Knoploch to elaborate upon what she had meant by a “theoretical” work capacity, the doctor replied,

Until we actually have a patient try to work on a trial basis and start performing those real work activities, then these statements are made based on the knowledge that this kind of injury may affect these activities and in this particular case, since I know the patient, the truth is that you doubt the actual real life or job or tasks, which we cannot stimulate as well in a function [sic] capacity evaluation. It becomes a theory until we put it in practice.

Id., p. 45.

The doctor then went on to state that in her opinion, the claimant’s depression was not the primary impediment to the claimant’s work capacity, “but rather, the actual physical restrictions imposed by surgery and the medical restrictions to prevent further damage to the spine and her pain would probably be the limitations.” Id., p. 48. In support of her conclusion in her report of November 16, 2004 that the claimant’s work capacity was essentially nonexistent, she offered the following:

I guess, in this case, I knew the patient well and unfortunately, that’s also the social issue being considered and what her alternatives for an occupation would be. So I would think it’s just a social addendum that I don’t think you asked me to out [sic] on, but I thought, in this particular case, was quite significant, unlike many other workers that I treat that have other alternatives and vocational rehabilitation potential.

Id., p. 49.

When claimant’s counsel asked the doctor whether the claimant is “a patient of yours who really can’t work,” the doctor replied:

I don’t think she can work in a physical – in a job that requires physical tasks, so that’s why the social addendum here – if Jackie was able to work as a receptionist and having the flexibility, which I would consider a sedentary job, a receptionist, and have the flexibility to change positions and so forth, because she had the proper skills, and if she was very articulate, I could see her doing that, perhaps, on a part-time basis, assuming that was – she started – it was determined that the pain was not a big interference, the medications were not a big interference, so I believe and wrote that sedentary work, from a medical point of view, might occur, with the caveat that there are some other considerations. (Emphasis added.)

Id., p. 50-51.

Finally, after claimant’s counsel suggested several potential occupations for the claimant, all of which Dr. Knoploch rejected as unsuitable, claimant’s counsel asked, “As you sit here today, you can’t think of anything she can do?” Id., p. 54. The doctor replied, “Honestly, I can’t. Not that it doesn’t exist, but I – not that I’m aware of.” Id. Under crossexamination, when pressed by respondents’ counsel regarding some hypothetical situations under which the claimant might be able to work, such as if she received instruction in reading and writing English or formal training for a sedentary occupation, the doctor indicated that she had no opinion as to whether the claimant could be trained in such a manner. Id., p. 55.

Having thus reviewed the testimony of Dr. Knoploch in exhaustive detail, we are not inclined to challenge the trial commissioner’s reliance, as stated in both the Finding and Order and the Articulation, upon Dr. Knoploch’s opinion in finding the claimant totally disabled. Likewise, we do not find particularly persuasive the respondents’ assertion that Dr. Knoploch’s live testimony “superceded” her written medical reports and “recanted” her initial opinion as to the extent of the claimant’s disability. Appellant’s Brief, p. 15. Dr. Knoploch’s statements at trial regarding the ability of the claimant to pursue even sedentary employment are littered with caveats and disclaimers and, when pressed, she admitted that she could not think of even one viable employment option for the claimant.

In a similar vein, a close examination of Dr. Wilchinsky’s report of October 22, 2004 also reveals a number of caveats preceding his conclusion that the claimant has a sedentary work capacity. First, he diagnoses the claimant as suffering from “a failed back syndrome”3 and notes that the claimant “continues to complain of severe back and leg pain and has been out of work for four years.” Respondents’ Exhibit 2. He also indicates that he does not see a need for further treatment for the claimant, “as she has exhausted all surgical and conservative modalities”, id., and states that the claimant “has been taking narcotic analgesics for some time, and in the future I feel that she most likely will continue to require these medications.” Id. With regard to current limitations on the claimant’s work capacity, he opines that the claimant would not be “capable of doing any type of job that involves lifting, bending, climbing, or repetitive motions involving her lumbar spine.” Id. Finally, he remarks that even were the claimant to pursue “sedentary type work … I feel that it would be to her benefit to be retrained for such types of employment.” Id.

It is well settled that it is within the purview of the trial commissioner to decide which evidentiary submissions, or certain parts thereof, are credible. “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted.) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). In addition, a trial commissioner does not weigh specific evidence in isolation. It is within the trier’s authority to resolve inconsistencies or contradictions in the evidence. Gibson v. Keebler Co., 37 Conn. App. 392, 395-396 (1995). “It is … immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).

In light of our examination of the observations contained in Dr. Wilchinsky’s report relative to the claimant’s restrictions and limitations, and our review of the totality of Dr. Knoploch’s testimony and medical records regarding the same issues, we find the evidentiary record easily supports the proposition that the medical opinions of Drs. Knoploch and Wilchinsky are a great deal less “contradictory” than the respondents allege. It is thus reasonable to infer that the trial commissioner was far more persuaded by the similarities between the two doctors’ opinions than the differences, and simply crafted his original findings accordingly.4 In light of these similarities, and the fact that in both the original Finding and Order and the Articulation, the trial commissioner determined that the claimant was totally disabled, we do not find improper, the respondents’ assertions to the contrary notwithstanding, the trial commissioner’s clarification in his Articulation with regard to which doctor’s opinion he ultimately found more persuasive.

“Inconsistencies in the evidence must be resolved by the trier, and she may give credit to all, part or none of the testimony given by a lay or expert witness, while also retaining the authority to reject evidence that superficially may appear to be uncontradicted.” Gagliardi v. Eagle Group, Inc., 4496 CRB 2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam). Given the high degree of deference we must allow for a trier’s factual findings, we therefore conclude that the trial commissioner’s conclusions regarding the extent of the claimant’s disability were not an abuse of discretion and we will not disturb those findings on appeal.

As mentioned previously herein, the respondents have also alleged that the trial commissioner improperly relied on Dr. Knoploch’s written reports in arriving at his factual determinations in the Articulation because he presumably did not rely upon them when he made his original findings. In addition, the respondents complain that the trial commissioner failed to specify which of Dr. Knoploch’s fifty-seven reports contained in Claimant’s Exhibits A and B he found credible or persuasive. However, an examination of Findings, ¶ A, of the Finding and Order reveals that the trial commissioner simply referred to “the medical opinion” of Dr. Knoploch, and not, as the respondents’ assert, to her testimony. Thus, it can be reasonably inferred that his interpretation of that medical opinion was derived from both Dr. Knoploch’s testimony and the written reports contained in the claimant’s exhibits.

We are also unmoved by the respondents’ complaints concerning the trial commissioner’s lack of specificity in his Articulation as to which of Dr. Knoploch’s fiftyseven reports he relied upon in arriving at his assessment of the claimant’s disability. Administrative Regulation § 31-301-3 clearly obviates the necessity for such a recitation, as it provides that, “[t]he finding of the commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from evidence or merely evidential facts, nor the reasons for his conclusion.”

We note that in Carroll v. The Print Shoppe, 3614 CRB-4-97-5 (June 8, 1998), the respondents raised a similar challenge relative to the basis for the trial commissioner’s decision, prompting this board to remark, “[w]e acknowledge that it would have been preferable for the trial commissioner to explicitly list the statements of the claimant that she found to be true. We will not pretend, however, that we are unable to discern the basis for her decision from the findings listed in … her Finding and Award.” In the instant matter, we likewise find easily discernible the basis for the trial commissioner’s conclusions regarding the extent of the claimant’s disability.

Finally, the respondents argue that the trial commissioner once again failed to clarify whether his determination that the claimant was totally disabled was based on a finding of medical disability or vocational disability. According to the respondents, “in the Trial Commissioner’s original findings, he specifically based much of his decision on the claimant’s education, work experience, and fluency in the English language.” Appellant’s Brief, p. 16, citing Findings, ¶¶ 6, 9, 10, 11 and C of the Finding and Order. The respondents assert that because the claimant’s treating physician, independent medical examiner and commissioner’s examiner all concluded that the claimant in fact was not totally disabled, the trial commissioner must have based his assessment on the “vocational aspect.” Id., p. 17. “Rather than acknowledge the incontrovertible evidence, the Trial Commissioner has instead based his decision regarding the claimant’s work capacity on her limited ability to speak English.” Id., p. 19.

We disagree. A review of the evidentiary record indicates that neither party in this matter presented expert testimony on the issue of vocational disability. “We have stated that a vocational expert is not a requirement for every case where total disability is an issue. In the absence of such evidence, we have made clear that a trial commissioner must discount statements made by a physician that opine on issues beyond that of medical opinions.” (Internal citations omitted.) Bazelais, supra. When the instant matter initially came before this board, we noted that, “[t]he record is unclear whether the claimant was proceeding under an Osterlund v. State, 135 Conn. 498 (1949) theory that her labor was unmarketable or a reliance on her treating physician’s opinion that she was medically incapable of performing remunerative labor.” Bazelais, supra. The record was likewise unclear whether the parties had been prepared to present an Osterlund argument at trial.

Osterlund is pertinent to our review of this matter, because the decision provides a fact finder with several additional elements for consideration when assessing whether a claimant is totally disabled. In Osterlund, the Supreme Court stated, “[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. The practical effects of this doctrine are such that, “[w]hen a claimant has a theoretical light duty work capacity, it is reasonable for a trial commissioner to consider the claimant’s age, education and other factors in order to determine whether the claimant is in fact totally disabled.” Girasuolo v. West Haven, 4782 CRB-3-04-2 (April 13, 2005), citing Hidvegi v. Nidec Corporation, 3607 CRB-5-97-05 (June 15, 1998).

We do not dispute the respondents’ contentions that the trial commissioner did indeed make a number of findings in his original Finding and Order which appeared to implicate the concept of vocational disability. For instance, the trial commissioner found credible the claimant’s son’s testimony as to his mother’s difficulties with walking, getting out of bed, carrying objects, shopping, driving, doing laundry, or cooking. The trial commissioner also found that the claimant has “a limited command of the English language,” Findings, ¶ 6, and relies upon her daughterinlaw for assistance with her bills and paperwork. Remarking that the “Claimant’s education, even in her native land, is limited,” Findings, ¶ 11, the trial commissioner stated that his decision was “based on the Claimant’s education, work experience, physical conditioning, and her need to use narcotic medications and other potent drugs.” Findings, ¶ C.

However, as we have determined, the evidentiary record in this matter more than adequately supports the trial commissioner’s conclusions regarding the claimant’s medical disability even without the various references to vocational disability. The preceding discussion illustrates that the medical record is rife with notations concerning the claimant’s myriad restrictions and limitations, and the trial commissioner properly identified this medical record in support of his findings in both the Finding and Order and the Articulation.

“Whether a claimant is totally disabled pursuant to § 31-307 C.G.S. or has a light work duty capacity are factual determinations for the trial commissioner.” Girasuolo, supra. See also Liano v. Bridgeport, 3199 CRB-4-95-10 (March 25, 1997); Monaco v. Metal Masters, Inc., 15 Conn. Workers’ Comp. Rev. Op. 415, 2245 CRB-3-94-12 (August 29, 1996); Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 1980 CRB-1-94-3 (August 30, 1995); Holevinski v. State/Southbury Training School, 9 Conn. Workers’ Comp. Rev. Op. 215, 988 CRD-5-90-3 (September 12, 1991).

Here, the trial commissioner had the benefit of three medical expert opinions to consider in arriving at his conclusions; in addition, and not insignificantly, the trial commissioner also had the opportunity to hear live testimony from the witness and a family member. In Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), this board reviewed a similar matter and concluded, “[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.” The claimant’s testimony may not have been particularly eloquent, but it was genuine, and the trial commissioner’s reliance upon this testimony in making his determinations fully complies with the legal maxim that, “[c]redibility must be assessed … not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude….” Briggs v. McWeeny, 260 Conn. 296, 327 (2002); Mottolese v. Burton, 267 Conn. 1, 40 (2003).

Accordingly, we hereby affirm the January 12, 2007 Articulation of Finding & Order and Ruling on Respondents’ Motion to Articulate of the Commissioner acting for the Seventh District.

Commissioners Ernie R. Walker and Charles F. Senich concur in this decision.

1 We note that postponements were granted during the pendency of this appeal. BACK TO TEXT

2 See Bazelais v. Honey Hill Care Center, 5011 CRB-7-05-10 (October 25, 2006). BACK TO TEXT

3 Dr. Ripps, the commissioner’s examiner, also diagnosed the claimant as having “[f]ailed back rehabilitation with persistent radicular symptoms” in his report dated June 15, 2004. Respondent’s Exhibit 1. BACK TO TEXT

4 Accordingly, we are not persuaded by the respondents’ attempts to liken this matter to Safford v. Brockway, 262 Conn. 526 (2003). In Safford, the appellate court found the trial commissioner had abused his discretion by disregarding three different medical reports assigning a permanent partial disability rating to the claimant’s shoulder and substituting his own findings, which could not subsequently be reconciled with the text of any of the reports or the American Medical Association guidelines. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: August 29, 2008

Page URL: http://wcc.state.ct.us/crb/2008/5191crb.htm

Workers’ Compensation Commission Disclaimer, Privacy Policy and Website Accessibility

State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
Home News RSS News QUICK Find Index Search E-Mail
General Information Glossary Law CRB Opinions Workers' Compensation Commission Downloadable Forms and Publications Links