State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Kennedy v. State of Connecticut Department of Correction

CASE NO. 5238 CRB-1-07-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 26, 2008

THOMAS KENNEDY

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

GAB NORTH AMERICA, INC.

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Mark Blakemen, Esq., Michelson, Kane, Royster & Barger, P.C., Hartford Square North, Ten Columbus Boulevard, Hartford, CT 06106.

The respondent was represented by Donna H. Summers, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review From the June 13, 2007 Finding and Award of the Commissioner acting for the First District was heard January 25, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN. A. MASTROPIETRO, CHAIRMAN. There is a single issue on appeal. Did the trial commissioner properly determine that the claimant was totally disabled during a period in late 2004 and early 2005? The respondent argues that the evidence before the trial commissioner was inadequate to reach such a finding. The claimant argues that the evidence was sufficient to support this conclusion. While we must defer to a trial commissioner’s evaluation of evidence, we determine that even placing this evidence in the most favorable light to the claimant we cannot conclude total disability benefits should have been awarded to the claimant. As a result, we vacate the finding of total disability and remand this matter for further proceedings to ascertain what benefits, if any, the claimant may be entitled.

The trial commissioner found the following facts relevant to this appeal when he issued his Finding and Award on June 13, 2007. The claimant had been injured when assaulted by an inmate at Osborn Correctional Facility on September 9, 2003. He was treated after the assault at Bay State Medical Center for a head injury and he was subsequently treated at Johnson Occupational Medical Center on September 11, 2003 and diagnosed with Post-Traumatic headache, a head contusion, and cervical strain. The claimant then began treating with Dr. Keshav R. Rao, a neurologist, who determined the claimant was totally disabled on September 25, 2003. Dr. Rao released the claimant to light duty work on December 1, 2003. On April 26, 2004 Dr. Rao reported the claimant could not return to full duty work because of persistent headaches. Dr. Rao noted at that time the claimant was also seeing other doctors, including a physiatrist, Dr. Robert Krug.

In July 2004, the respondent filed a Form 36 asserting the claimant was capable of full-time work. This Form 36 relied on opinions offered by Dr. Krug. The Form 36 was granted effective October 16, 2004. The claimant returned to work on November 1, 2004. He worked for one week, wherein, the respondent did not allow the claimant to continue working. In a report dated December 22, 2004 Dr. Rao released the claimant to full duty work status effective January 3, 2005, when the claimant again returned to work. Dr. Rao later opined that the claimant has been “totally disabled” from April 16, 2004 to October 28, 2004. The respondent argued to the contrary that the Form 36 should have become effective before October 16, 2004.

Based on those facts the trial commissioner concluded the claimant and Dr. Rao were credible and persuasive. He found Dr. Rao’s note stating the claimant was totally disabled from April 16, 2004 to October 28, 2004 credible and persuasive. He found the state had repudiated the approval of the Form 36 by not allowing the claimant to work; and therefore denied the Form 36 received on July 23, 2004. Therefore, the commissioner ordered the respondent to pay the claimant benefits under § 5-142 C.G.S. from September 9, 2003 until January 2, 2005.

The respondent filed a series of post-award motions. They filed a Motion to Correct seeking to amend the Finding and Award to award the claimant temporary partial disability benefits for the period from October 28, 2004 to January 2, 2005. This Motion was denied. A Motion for Clarification and a Motion for Articulation were also filed by the respondent. Both were denied. The respondent then pursued the present appeal.

The respondent argues on appeal that as a matter of law, the award of total disability benefits to the claimant from October 28, 2004 to January 2, 2005 was erroneous. They argue that the uncontradicted evidence was that the claimant had a work capacity, and moreover, that the claimant actually worked during part of this time period. The claimant argues that the respondent is seeking to have an appellate board reverse a decision based on the trial commissioner’s weighing of the evidence. While our appellate charge obligates us to provide great deference to the factual determinations of a trial commissioner, this deference does not equate to a carte blanche approach to a commissioner’s findings. We delineated our standard of review in Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007) quoting Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007);

On appeal we have a limited scope of review, as our standard of review is deferential to the finder of fact. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004).
This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing. As we held in Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007).
In Sullivan v. Madison-Police Department, 4893 CRB-3-04-12 (June 9, 2006) we explained that although we are deferential to the finding of facts reached at the trial level, our appellate review must consider whether the facts found are supported by competent evidence and are legally consistent with the ultimate outcome of the case.
While this board cannot retry the facts of this case, it must review the sufficiency of the evidence against the legal standards required for granting an award. “The power and duty of determining the facts rests with the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993). Id.
We also noted in Sullivan that it is our responsibility as an appellate body to correct a commissioner’s misapplication of the law to the subordinate facts. See Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003).

Upon review we conclude the trial commissioner’s ruling on the issue of temporary total disability was “clearly erroneous.” Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 666 (2006). Our reasoning is as follows. The relevant statute (§ 5-142 C.G.S.) requires a finding of “total incapacity.” This language tracks the holding in Osterlund v. State, 135 Conn. 498 (1949), where 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 trial commissioner found that the claimant did actually work for the respondent for a one week period starting on November 1, 2004.1 While we understand why the trial commissioner was perplexed as to what prompted the respondent to reverse course and direct the claimant to stay home; the undisputed fact is the claimant did remunerative work during this period which unquestionably demonstrates a work capacity based on the precedent in Osterlund, supra.

Had competent evidence been offered that the claimant was medically disabled during this period this panel would be in a position to sustain an award for total disability benefits. However, the respondent points to the lack of medical evidence supporting a finding of total incapacity during this time frame. While the trial commissioner did find Dr. Rao a credible witness, he offered no medical evidence on the issue of total disability for any period following October 28, 2004. We agree with the respondent that Sousa v. Intercity Development, LLC, 4878 CRB 8-04-10 (October 17, 2005) is on point. A claimant must generally proffer medical evidence that demonstrates he or she is totally disabled within a reasonable medical probability. This evidence was lacking.2 We have previously remanded matters when the facts found by the trial commissioner failed to conform to the evidence on the record. See Green v. General Motors Corporation New Departure, 5111 CRB-6-06-7 (August 21, 2007) and Caraballo, supra.

For the foregoing reasons the Finding and Award of temporary total disability benefits dated July 13, 2007 is vacated and the matter is remanded to the commissioner for the determining of what benefits, if any, the claimant is entitled to for the period from October 28, 2004 until January 2, 2005.

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

1 The record indicates that this work assignment was terminated not due to direction from the claimant’s physician, or the claimant’s inability to perform the work provided, but due to some bureaucratic limitation on the respondent’s part, limiting the duration of light duty work. BACK TO TEXT

2 The claimant’s own testimony and a demeanor evaluation by the trial commissioner could have offered an alternative basis to award total disability benefits under some circumstances. Sousa v. Intercity Development, LLC, 4878 CRB-8-04-10 (October 17, 2005), but the Finding and Award in this case indicates the trial commissioner relied primarily on the respondent not offering work to the claimant. See, Findings, ¶¶ D and E. BACK TO TEXT

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