State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Franklin v. State of Connecticut/Department of Mental Health & Addiction Services

CASE NO. 5224 CRB-8-07-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 11, 2008

DAVID FRANKLIN

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPARTMENT OF MENTAL HEALTH & ADDICTION SERVICES

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, 96 Webster Street, Hartford, CT 06114.

The respondent was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the April 12, 2007 Finding and Dismissal of the Commissioner acting for the Eighth District was heard November 16, 2007 before a Compensation Review Board panel consisting of the Commission Chairman, John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal is from the denial of temporary total disability benefits. The claimant is a college educated man who worked in white collar positions as a young adult, but switched careers to work in building maintenance for the State. While employed by the State he suffered a compensable cervical injury which now precludes him from returning to the job he held when he suffered the injury. He asserts that injury has rendered him totally disabled. The trial commissioner disagreed, finding the claimant had an earning capacity in white collar jobs. We find the trial commissioner had an evidentiary basis for this conclusion and we therefore uphold his decision and dismiss this appeal.

Many of the facts in this case were undisputed. The claimant was injured at work and a Voluntary Agreement for the injury was approved in 2004. He was born in 1947 and graduated from college in North Carolina. He lived in New Jersey for about ten years and was employed during this period in the insurance and credit fields. In 1984 the claimant moved to Connecticut and was working as a substitute teacher when in 1986 he was hired as a maintenance worker at a state hospital. He worked in this field for the State continuously until his cervical injury in March 2004. He had surgery performed at Yale-New Haven Hospital in April 2004. Following this surgery he has been awarded state disability retirement and is receiving income from social security disability. The claimant has also been awarded permanent partial disability benefits under C.G.S. § 31-308. The claimant still has some symptomatology from his injury and surgery, i.e. cervical myelopathy.

The dispute concerns what work capacity the claimant retains following the injury and surgery. In September 2004 the claimant was evaluated by Carol Fortin, a physical therapist, who performed a functional capacity examination (FCE) of the claimant and opined the claimant was capable of three hours of sedentary work per day. Dr. John Strugar, a spinal surgeon, examined the claimant and cleared him for sedentary work in October 2004. In March 2005 Dr. Strugar said he concurred with the recommendations of the previous FCE. In December 2005 a rehabilitation consultant, Hank Lerner M. Ed., examined the claimant to assess his employability post-injury. Mr. Lerner concluded that the claimant’s age and impairments would pose difficulties in his ability to access employment, but identified specific part-time jobs he believed the claimant could perform. The respondent had their expert, James S. Cohen, Ph.D. examine the claimant in April 2006 to determine his earning capacity. Dr. Cohen opined that the claimant had many transferable skills but would need an adaptive workplace. He suggested the claimant retrain to reenter the teaching or insurance fields and concluded the claimant had a present earning capacity doing part time sedentary work.

The claimant testified at the formal hearing that due to his work injury and its sequelae the physical restrictions placed on him along with his age now made him unable to engage in gainful employment.1 He voiced disappointment that he was unable to return to the maintenance work he had performed for almost two decades, which was a job he loved. The respondent asserted the evidence before the commissioner did not support a total disability claim based on the holding of Osterlund v. State, 135 Conn. 498 (1949) as the claimant was not permanently and totally disabled from all gainful employment. The trial commissioner agreed with the respondent, specifically finding Dr. Cohen the most credible expert witness. As he did not find the claimant proved he lacked a work capacity, the commissioner denied the claim for § 31-307 C.G.S. benefits.

The claimant filed a Motion to Correct which was denied in its totality. He also filed a Motion to Submit Additional Evidence. He now appeals the trial commissioner’s decision on a number of grounds: a) the commissioner failed to consider whether the claimant was entitled to an award under § 31-307(c)(6) C.G.S. for an injury “resulting in incurable imbecility or mental illness” and b) the commissioner improperly determined that the claimant was not entitled to an award under § 31-307(a) C.G.S. We find no error regarding either proposition.

In considering this appeal, we note that we have established a uniform standard for review of cases applying § 31-307 C.G.S. In Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007) we cited 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. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

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). The trial commissioner determined the claimant failed to meet this burden, and we must determine whether this conclusion was “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).

As for the first issue on appeal, regarding the claimant’s alleged mental illness resulting from the compensable injury, a review of the September 6, 2006 hearing transcript indicates that counsel for the claimant raised this issue at the eleventh hour, and the respondent duly objected to the admission of the exhibits (Claimant’s Exhibits C, D & E) offered in support of the claim. The commissioner sustained the objection and decided to commence the claimant’s testimony. September 6, 2006 Transcript, pp. 1-6. Whether or not to admit this evidence under these circumstances was a matter reserved to the trial commissioner’s discretion Lamontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008).

The claimant argues the precedent in Carlson v. BIC Corporation, 4364 CRB-3-01-2 (January 29, 2002) suggests the trial commissioner should have granted an award to him under § 31-307(c)(6) C.G.S. We disagree. Carlson reiterates the maxim from Fair v. People’s Savings Bank, 207 Conn. 535 (1988) that the trial commissioner’s duty to find facts cannot be usurped by an appellate panel. We may properly infer the trial commissioner did not conclude the claimant suffered from mental illness after observing his testimony at the hearing.2 A similar issue pertaining to witness demeanor was raised in Leandres, supra, where we held, “[i]n 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.’ ”

We also find that Leandres, supra, is substantially dispositive of the argument that as a matter of law the claimant established his entitlement to an award under § 31-307(a) C.G.S. consistent with Osterlund, supra. Similar to the evidence before the trial commissioner in the present case, the trial commissioner in Leandres credited expert testimony that the claimant had a sedentary work capacity. “Since the trial commissioner’s finding of employability is based specifically on probative evidence, we cannot find her conclusion herein ‘clearly erroneous.’” We find the trial commissioner herein could properly credit Dr. Cohen’s report for that reason.

The claimant may well believe that the trial commissioner should have evaluated his circumstances in the same manner as the trial commissioner did in Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998), where benefits under § 31-307 C.G.S. were awarded. While both cases involve individuals who had a history of physical labor who were injured and had substantial limitations placed on their light duty work capacity, there are substantial differences.

Some claimants who were found to have a sedentary work capacity were found to lack the “tenets of employability” and thus, entitled to § 31-307 C.G.S. benefits, i.e., Howard v. CVS Pharmacy, Inc., 5063 CRB-2-06-3 (April 4, 2007). The evidence in this case indicates that unlike Ms. Hidvegi, the claimant had numerous job skills and unlike Ms. Howard, was not heavily medicated for the compensable injury. Therefore, the trial commissioner in the present case reached a different conclusion as to the claimant’s employability, and as all of the expert testimony submitted opined to the claimant having some work capacity, we do not find this conclusion unreasonable.3

The other arguments raised can be briefly addressed. We have long held that whether a claimant was awarded social security benefits or state disability benefits is not dispositive as to whether they have proven their claim for § 31-307 benefits. See Dzienkiewicz v. State/Dept. of Correction, 5211 CRB-8-07-3 (March 18, 2008); Hernandez, supra, Bidoae v. Hartford Golf Club, 4693 CRB-6-03-7 (June 23, 2004), aff’d, 91 Conn. App 470, 480-481 (2005), cert. denied, 276 Conn. 921 (2005); Schenkel v. Richard Chevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004); Krajewski v. Atlantic Machine Tool Works, Inc., 4500 CRB-6-02-3 (March 7, 2003). The claimant has submitted on appeal a motion to submit additional evidence (documentation of job searches); but we are not persuaded this evidence could not have been submitted prior to the closing of the formal hearing. See Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 57-58 (2001). Finally, as the claimant’s Motion to Correct sought to interpose the claimant’s conclusions as to the facts presented, we find no error in its denial. See Hernandez, supra, and Liano, supra.

The claimant in this case is no doubt profoundly chagrined that he cannot return to a job which he enjoyed performing for nearly two decades. The legal standard for total disability under Chapter 568 is substantially different, and the trial commissioner believed the claimant could find another form of remunerative employment. Since this conclusion was based on probative evidence, we must affirm the trial commissioner and dismiss this appeal.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 Among the physical restrictions on the claimant were lifting restrictions, driving restrictions and the occasional use of pain medication. He testified at the formal hearing that he “had to take a retirement because they told me there’s no work. They couldn’t retrain me.” September 6, 2006 Transcript, p. 28. BACK TO TEXT

2 While counsel for the claimant asserts his client is often forgetful and stuttering, the hearing transcript indicates the claimant could recall with lucidity his activities during the Vietnam War era and when he was hired by the State, for example. BACK TO TEXT

3 We note that in Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998) the claimant was found to have “limited academic preparation” wherein Mr. Franklin is a college graduate. As a result it was reasonable for the trial commissioner to conclude the claimant’s remaining work capacity was far greater than Ms. Hidvegi. BACK TO TEXT

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