CASE NO. 5275 CRB-7-07-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 12, 2008
STATE OF CONNECTICUT JUDICIAL BRANCH
GAB ROBINS OF NORTH AMERICA
The claimant was represented by Steven D. Jacobs, Esq., Jacobs, Jacobs & Shannon, 265 Orange Street, New Haven, CT 06510.
The respondent was represented by Lawrence G. Widem, 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 September 20, 2007, 2007 Finding and Dismissal of the Commissioner acting for the Seventh District was heard April 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. The claimant has taken this appeal from the September 20, 2007 Finding and Dismissal of the Commissioner acting for the Seventh District. In her Finding and Dismissal, the trial commissioner denied the claimant total disability benefits for the period between July 16, 2004 through March 12, 2007. The pertinent facts and history of proceedings relating to this claim are as follows.1
On November 20, 2001 the claimant, while employed as a marshal for the State of Connecticut Judicial Department, was attacked by a juvenile prisoner. As a result of that attack the claimant sustained compensable injuries to her head and right upper extremity. Claimant’s original treating physicians, Dr. W. Tracy Schmidt and Dr. Henry Rubenstein, both orthopedists, diagnosed the claimant as suffering from Reflex Sympathetic Dystrophy [RSD] of the right upper extremity. Dr. Rubenstein also believed the claimant suffered from right cervical radiculitis and after a number of months following the injury, depression.
In October 2002 the claimant initiated treatment for her depression with Mary Ellen Lorefice, MSW and Dr. Lawrence Lorefice. The claimant also began pain management therapy with Dr. Vincent R. Carlesi. On January 2, 2003, during a pain management session, Dr. Carlesi believed that he witnessed the claimant’s attempt at faking an epileptic seizure. Shortly thereafter Dr. Carlesi suggested the claimant undergo a psychological evaluation and the use of a spinal cord stimulator.
On August 7, 2003 Commissioner Leonard Paoletta informally approved the Form 36 filed July 17, 2003 by the respondent. The Form 36 indicated that the claimant had reached maximum medical improvement and had a work capacity. Appended to that Form 36 was the May 10, 2003 report of the respondent’s examiner, Dr. David C. Levi, a pain specialist. Dr. Levi limited his opinion to the claimant’s incapacity and medical care relating to her right upper extremity, alleged RSD and Complex Regional Pain Syndrome. He declined to comment on the claimant’s depression and psychiatric conditions as they were matters beyond his purview.
The July 17, 2003 Form 36 was considered de novo in proceedings before Commissioner James Metro. In his February 9, 2006 Finding and Order, Commissioner Metro concluded the claimant was not totally disabled due to the injury to her upper right extremity. However, Commissioner Metro did not determine whether the claimant was totally disabled as a result of her psychiatric issues. An appeal was taken by the claimant from the February 9, 2006 Finding and Order and our opinion was given in Martinez-McCord v. Judicial Branch, 5055 CRB 7-06-2 (February 1, 2007) [hereafter Martinez I].
In Martinez I we considered whether the trial commissioner erred in failing to find the claimant totally disabled due to the injury to her upper extremity. The trial commissioner’s conclusion was affirmed insofar as he dismissed claimant’s claim for temporary total disability benefits on the basis of her right upper extremity problems. We declined the claimant’s invitation to issue an order of mandamus instructing the commissioner to award the total disability benefits on the basis of claimant’s psychiatric condition. That issue was remanded for additional hearings to determine whether the claimant was totally disabled as a result of her psychological problems.
After Martinez I was issued, proceedings were held before the trial commissioner in the matter presently under our consideration. The trial commissioner took administrative notice of documents and filings in the earlier proceedings. Finding ¶ 2. In addition to the issue remanded for consideration by Martinez I, i.e., whether the claimant was totally disabled as a result of her psychiatric condition, the commissioner was asked to determine whether the claimant was totally disabled due to the injury she sustained to her upper right extremity for the period after July 16, 2004. In her September 20, 2007 Finding and Dismissal the commissioner concluded the claimant was not totally disabled for the period between July 16, 2004 and March 12, 2007 on the basis of injuries sustained November 20, 2001.
The claimant took this appeal and argues that the trial commissioner’s conclusion is based on impermissible inferences. In essence, the claimant argues that the quantity and character of the evidence proffered in support of her claim are such that the trial commissioner’s failure to find the claimant totally disabled is an abuse of her discretion. Whether a trial commissioner’s conclusion resulted from an abuse of discretion turns on whether the trier could reasonably conclude as she did. Simmons v. Simmons, 244 Conn. 158 (1998). We think the evidence in this matter can reasonably be read to support the trier’s conclusion.
We begin with a review of the oft quoted standards by which we review the legal appropriateness of the commissioner’s determination in matters like the one at hand. Whether the claimant was totally disabled for the period at issue is a question of fact to be determined by the trial commissioner. Bidoae v. Hartford Golf Club, 91 Conn. App. 470 (2005). The appellate standard for determining whether there was error is limited to whether the trier’s conclusion is contrary to law, based on unreasonable or impermissible factual inferences or without support in evidence. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Further, the conclusions reached on such questions are entirely dependent on the weight and credibility assigned to the evidence by the trier of fact. McCarthy v. Hartford Hospital, 108 Conn. App. 370 (2008). As an appellate body we do not engage in de novo review. Anderton v. Waste Away Serv., 91 Conn. App. 345 (2005).
Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom. . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.
Berube v Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007) quoting Burton v. Mottolese, 267 Conn. 1, 40 (2003). See also Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006).
In the prosecution of her claim for total disability benefits relating to her injury to her upper extremity, the claimant faced an uphill battle. Claimant’s entitlement to total disability due to her upper extremity injury was an issue considered by Commissioner Metro in his February 9, 2006 Finding and Order and affirmed in Martinez I. The claimant could have anticipated that the second trial commissioner would question how the claimant’s condition had changed, ostensibly worsened, since the issue was considered and adjudicated before Commissioner Metro and that the second trial commissioner would draw inferences as to what claimant’s work capacity was at the time Commissioner Metro heard the matter. It would therefore follow that the record before Commissioner Metro, as well as the evidence proffered before the second trial commissioner, would form the basis of her conclusion.
Unfortunately for the claimant, part of that record before Commissioner Metro included a surveillance tape of the claimant. The surveillance tape reflected the claimant’s activities for various periods between October 2002 and May 2003. The tape demonstrated she engaged in certain general life activities such as; driving a car, grocery shopping, walking, getting coffee, etc., all without the apparent extreme level of discomfort she claimed to endure as a result of the November 2001 injury. That surveillance tape was reviewed by Commissioner Metro and Dr. David Levi. After reviewing the tape, Dr. Levi altered an earlier opinion and opined that the claimant did not suffer from RSD, did not require further medical treatment, and was not totally disabled.
The claimant characterizes the surveillance tape as a red herring. Nonetheless, it was part of the foundation for Commissioner Metro’s assessment. In any question regarding claimant’s work status, evidence of the claimant’s activity level for the period considered by Commissioner Metro was germane. This put the claimant in the position of reconciling and substantiating the differences in claimant’s abilities between the two periods at issue. To that end, the claimant proffered a number of medical reports and opinions speaking to both the claimant’s disability status as a result of her upper extremity injury and her psychological issues. The degree to which the trial commissioner found these persuasive is gauged by her conclusion.
Among the evidence offered was the claimant’s own testimony. The claimant told of her involvement in a car accident while riding in a taxicab in New York City in November 2005 and the effects of the accident on her. She stated that the car accident made her compensable injuries worse. However, later in her testimony she says her discomfort is largely unchanged since her November 2001 work related injury. We, therefore, cannot say that the trial commissioner’s conclusion that the claimant was not totally disabled for the period at issue due to the injury to her upper extremity constituted an abuse of her discretion.2 See March 12, 2007 Transcript, pp. 23-24 and pp. 41, 46-47.
This same analysis applies to the claimant’s challenge that the trial commissioner erred in concluding the claimant’s psychological problems did not render her totally disabled. Again, we find no error. The respondent proffered the April 7, 2006 report of a psychiatric examination performed by Dr. Mark Rubenstein. Dr. Rubenstein opined that claimant did suffer from Dysthymic Disorder/depression as a result of her compensable injury. However, Dr. Rubenstein opined that the claimant was not totally disabled. Dr. Rubenstein stated in his report:
[A]ssuming Ms. Martinez-McCord’s reporting to be reasonably accurate, she presents with Dysthymic (Depressive) Disorder which must be viewed as causally-related to the accident of November 20, 2001. This is not a disabling depression, and on a strictly psychiatric basis, Ms. Martinez-McCord retains a work capacity and is capable of working in any situation for which she is suited by virtue of training, education, experience or by virtue of retraining.
As for the patient’s ongoing psychotherapy with Dr. Rosner, she has been in weekly psychotherapy sessions for nearly two years. In my view she has attained maximum medical/psychiatric/psychologic benefit, if any such benefits were to be obtained. She does not require the administration of psychotropic agents and need not visit a psychiatrist, psychologist, social worker, or any other mental health professional at this point in time .
Respondent’s Exhibit 5. See also Transcript September 8, 2006 Deposition of Dr. Mark Rubenstein, p. 9. Respondent’s Exhibit 7.
We also note the commissioner’s findings as to claimant’s disability due to psychiatric problems reference the opinion of claimant’s treating psychiatrist, Dr. Stephen Cooper. The commissioner notes in Finding ¶ 38 that Dr. Cooper’s description of the claimant is similar to Dr. Rubenstein’s. The two experts merely differ as to the effect of her psychological issues on her disability status. “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.” Chesler v Derby, 96 Conn. App. 207, 218 (2006) quoting Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195, cert. denied, 251 Conn. 929 (1999). Thus, the trial commissioner was free to accord greater weight to some portions of Dr. Cooper’s report and less weight to other portions. This applies to all the evidence proffered in this matter. Consequently, our review does not indicate that the commissioner’s conclusion was an abuse of her discretion.
We therefore affirm the September 20, 2007 Finding and Dismissal of the Commissioner of the Seventh District.
Commissioners Ernie R. Walker and Charles F. Senich concur.
1 This is not the first time we have considered issues arising from this claim. Some of the pertinent facts and the procedural history were outlined in Martinez-McCord v. Judicial Branch, 5055 CRB 7-06-2 (February 1, 2007). BACK TO TEXT
2 We note that in her testimony before the trial commissioner the claimant testified:
Atty. Jacobs: Now, you were involved in a car accident a couple of years ago.
Ms. Martinez-McCord: Yes.
Atty. Jacobs: Do you remember when that was?
Ms. Martinez-McCord: I think it was in November of ’05.
Atty. Jacobs: What happened?
Ms. Martinez-McCord: I was a passenger in a cab with two other people, and we had stopped at a light, and a car rear-ended us.
Atty. Jacobs: Were you injured?
Ms. Martinez-McCord: Yes.
Atty. Jacobs: What were your injuries?
Ms. Martinez-McCord: My lower back.
Atty. Jacobs: Anything else?
Ms. Martinez-McCord: I just—I had hit the—on my right side. I hit my right arm up against the door, because we hit the car in front of us. So we kind of got banged around. At that moment I just became so sick, just, everything just—how do I say? The pain was just ten times worse after the accident.
Atty. Jacobs: The pain where?
Ms. Martinez-McCord: In the arm, my back, my knees. I feel like I’m a hundred years old.
Atty. Jacobs: All right. Now, for how long did it continue to feel ten times worse?
Ms. Martinez-McCord: Since that day.
Atty. Jacobs: So from that, the time of that accident to the present day, your condition has been ten times worse than it was prior to that time?
Ms. Martinez-McCord: Yes.
Atty. Jacobs: Well, remember I asked you to explain earlier whether your condition has changed in any way over the course of time from July 14th of 2004, and do you recall what you told me then?
Ms. Martinez-McCord: Yes.
Atty. Jacobs: What did you tell me?
Ms. Martinez-McCord: I said no.
Atty. Jacobs: It hasn’t changed?
Ms. Martinez-McCord: No.
Atty. Jacobs: But you’re telling me it’s gotten worse?
Ms. Martinez-McCord: I’m in so much pain constantly, I can’t really explain. I mean, it’s just—I’m sorry, my mouth is getting so dry.
Comm. Truglia: Let me help you here. When you first testified, you said the pain was the same as when you were originally hurt.
Now you said since that motor vehicle accident in November of ’05, your pain is ten times worse, which is different than saying it stayed the same since your original injury, because this accident came after your original injuries. So we’re sitting here trying to figure out which it is; it is the same as when you were originally injured in November of ’01, or it’s ten times worse now as we sit here today because of your November ’05 car accident.
Ms. Martinez-McCord: What I mean was that I can’t—
Comm. Truglia: Would you like a break?
Ms. Martinez-McCord: No, ma’am.
Comm. Truglia: I don’t want to put you—
Ms. Martinez-McCord: The medication makes my mouth so dry.
Comm. Truglia: I understand it. That’s why I’m trying to slow up a bit and give you a chance to explain what it is you mean, because clearly, if it’s ten times worse, we’re interpreting that to be ten times worse than the pain you felt from your November 22, 2001 injury. Is that what you mean to say?
Ms. Martinez-McCord: Yes.
Comm. Truglia: Okay. So then it really hasn’t stayed the same, your pain level hasn’t stayed the same since 11/20/01.
Ms. Martinez-McCord: What I meant to say was, it was bad, but the car accident—the car accident made it worse with the back and the neck problems and stuff.
Comm. Truglia: You also threw the arm in there, you said you became sick after the accident because the pain was ten times worse in the arm, back and the knees after the accident.
Ms. Martinez-McCord: At that moment when my arm hit the door, it was like—it was like somebody was killing me. It was that intense. Even when my son brushes up against my arm, it’s like, oh, God, or when I bang it on something by mistake or, you know, somebody walks into me.
Comm. Truglia: And so the pain you feel today is ten times worse because of that car accident than it was in November 20, 2001.
Ms. Martinez-McCord: Yeah.
Comm. Truglia: Okay.
March 12, 2007 Transcript, pp. 33-37.
Atty. Jacobs: Ms. McCord, just so that we’re absolutely clear, the level of pain and discomfort that you have today is, and have had since the time of the car accident, is worse than it was prior to that time?
Ms. Martinez-McCord: What I meant to say was, I had the pain, but at the moment that, because the …
Atty. Jacobs: But in terms of your activity level prior to the time of the car accident and since the time of the car accident and since the time of the accident, has that changed in any way?
Ms. Martinez-McCord: It’s been the same.
March 12, 2007 Transcript, pp. 40-41. BACK TO TEXT