CASE NO. 5241 CRB-2-07-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 25, 2008
SENTRY INSURANCE COMPANY
The claimant was represented by Jeremy D. Booty, Esq., Attorney at Law, 120 Broadway, P.O. Box 467, Norwich, CT 06360-0467.
The respondents were represented by Robert Jahn, Esq., Morrison Mahoney, LLP, One Constitution Plaza, Hartford, CT 06103.
This Petition for Review from the June 14, 2007 Finding and Award of the Commissioner acting for the Second 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.
JOHN A. MASTROPIETRO, CHAIRMAN. This appeal concerns whether the Commissioner acting for the Second District properly reopened a previously granted Form 36 and awarded the claimant temporary total disability benefits under § 31-307 C.G.S. We find that factually and legally this case is indistinguishable from our prior decision approving such benefits in Howard v. CVS Pharmacy, Inc., 5063 CRB-2-06-3 (April 4, 2007). As a result, we affirm the trial commissioner and dismiss this appeal.
The commissioner found the following facts. The claimant sustained a compensable back injury on August 22, 2000 which arose out of and during the course of her employment with the respondent-employer. Following that injury she worked at a light duty position at Cumberland Farms until she had spinal fusion surgery in January 2002. In January 2003 her treating physician, Dr. Charles Kime, evaluated the claimant and noted that the claimant had done very poorly both pre and post operatively, was at high risk for continued pain, she has a poor prognosis for further recovery, and he found her to be totally disabled. A commissioner’s examination was held by Dr. Jerrold Kaplan of Gaylord Hospital in December 2002. Dr. Kaplan suggested that the claimant’s prognosis was guarded, and a comprehensive pain management return to work program would offer her the opportunity to return to the work force. She was discharged from such a program offered at Gaylord in August 2003.
On December 10, 2003 Dr. Kime opined that the claimant needed a vocational assessment and was likely capable of some type of sedentary work activity, and she was at maximum medical improvement and was left with a thirty percent (30%) permanent partial disability of her lumbar spine. The respondents filed a Form 36 based on this report which was approved effective April 11, 2004. The claimant applied for the services of the Workers’ Compensation Commission’s Rehabilitation Services. Responsive to these issues, the claimant underwent a situational assessment at Southeast Employment Services. An assessment was held with the claimant working at Reliance House, a social service facility for people with mental health and/or substance abuse diagnoses. Reliance House was chosen for the situational assessment, because they were a flexible employer who was willing to accommodate the claimant’s physical condition. The claimant was given a customer service/clerical position which paid $9.00 per hour which included answering the phones, greeting visitors, and directing them to the appropriate work. The claimant was evaluated during this period by a Reliance House employee, and could have been hired by Reliance House had she succeeded in doing the job.
The claimant failed to meet the competitive standards required of other employees, however. While the employer was extremely pleased with her performance, the claimant’s attendance and punctuality and physical stamina was below employer standards. If the claimant was having morning pain she would arrive late to work, and it was noticeable when the claimant was in pain. During the week the claimant’s physical condition became progressively worse and her pain levels increased which caused her to take more pain medication. She had to cut the assignment short prior to the completion of a second work week. While the claimant exhibited a strong work ethic, the final determination of the situational assessment was that the claimant was unable to work competitively in the community due to her physical disability.
The claimant testified at the formal hearing to being constantly in pain and being unable to drive in the morning until her pain medication “kicked in” and made her feel able to drive. She testified that only lying down relieved her pain and that on bad pain days she could not get going until the afternoon. She also testified to sleep difficulties making her feel tired during the day and to having unpredictable pain which caused falls three to four times per month.
The respondents offered the opinion of their expert witness, Kerry Quint, who examined the claimant on September 15, 2006 and conducted a five and a half hour evaluation. Ms. Quint testified that the claimant did not exhibit any pain behaviors during the evaluation and moved and sat normally. Ms. Quint opined the claimant had an earning capacity in certain part time clerical and entry level manufacturing positions.
The trial commissioner concluded that the claimant was a credible witness concerning her level of disability. He determined that no other employer was likely to be as accommodating as Reliance House and that the claimant had been unable to perform the job at Reliance House. As the claimant had made reasonable efforts to locate employment and found her labor unmarketable, the trial commissioner reopened the Form 36 effective April 11, 2004 and awarded temporary total disability benefits.
The respondent filed a Motion to Correct which was denied in its entirety. They have appealed based on the argument that there was insufficient evidence before the trial commissioner to find her totally disabled, arguing the reasons she is not employable are due to “factors beyond the claimant’s work injury.”
We disagree. It is undisputed that the claimant suffered a compensable back injury and continues to suffer pain attributable to that injury. The report of Reliance House (Claimant’s Exhibit C), which the trial commissioner found credible, was that the level of pain made the claimant’s attendance reliability inadequate to meet needs in the workforce. The respondents’ primary argument rests on the statement that “absent the issue of punctuality, the claimant excelled in her situational assessment with Reliance House.” Respondents’ Brief, p. 4.
This statement glosses over the fundamental truth that someone is not working if they do not show up for work. The trial commissioner was presented with probative evidence that the claimant was not a reliable enough employee to meet the needs of Reliance House. His determination goes to the weight of the evidence, which we cannot disturb on appeal. See Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002). We believe the commissioner could properly infer that other potential employers would hold the claimant to the same standard, therefore the claimant proffered sufficient evidence she was vocationally disabled in accordance with the standards delineated in Osterlund v. State, 135 Conn. 498 (1949).1
There are two central issues herein: a) the issue of establishing total disability as a result of the inability to maintain the “tenets of employability’ regarding consistent work performance.” See Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006) and b) the issue of reopening a previously approved Form 36. On both points this case is virtually identical to Howard, supra. Since we are satisfied the trial commissioner had a sufficient evidentiary basis for his conclusions, stare decisis compels us to affirm the trial commissioner.2
The Finding and Award is herein affirmed and the appeal is dismissed.
Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.
1 The standard delineated in Osterland. v. State, 135 Conn. 498, 506-507 (1949) is as follows: “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.” BACK TO TEXT
2 Respondents claim it was error for the trial commissioner to reject its Motion to Correct. The Motion to Correct essentially sought to interpose the respondents’ conclusion as to the facts presented, including a reliance on Ms. Quint’s expert opinion as to the claimant’s employability. Since the commissioner did not accept her conclusions, we find no error. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT