State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Clarizio v. Brennan Construction Company

CASE NO. 5281 CRB-5-07-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 24, 2008

MICHAEL CLARIZIO

CLAIMANT-APPELLANT

v.

BRENNAN CONSTRUCTION COMPANY

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by James P. Brennan, Esq., Brennan & Isaac, 37 Leavenworth Street, 3rd Floor, P.O. Box 70, Waterbury, CT 06720-0070.

The respondents were represented by Richard T. Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the September 26, 2007 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 16, 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. The claimant in this matter asserts that he is totally disabled as a result of a compensable injury he suffered in 1988. The trial commissioner concluded that the claimant failed in his burden of persuasion on this issue. The claimant has appealed this denial. After reviewing the record we believe the trial commissioner’s conclusion was reserved to his discretion. As we cannot reverse such a decision on appeal, we affirm his decision and dismiss this appeal.

The trial commissioner found the following facts after holding a formal hearing which commenced May 31, 2006, with the record closing June 7, 2007. The claimant had suffered a compensable back injury December 15, 1988, and a Voluntary Agreement was approved for this injury on March 10, 1989. The claimant underwent surgery for his back on March 6, 1991 and subsequently was retrained for work (he had previously been a carpenter) in the computer and electronics field.

The claimant worked in the computer field until 2003 when pain and numbness in his legs forced him out of work and he was granted temporary total disability benefits. His physicians recommended fusion surgery which Claimant refused, as he sought pro-disc replacement by Dr. James Yue. The pro-disc surgery was approved by the Commission on December 6, 2004. Two surgeries were performed on the claimant in early 2005, surgery for a reherniation of the L4-5 disc on January 14, 2005 and the pro-disc replacement surgery on April 1, 2005. The claimant returned to work on August 15, 2005 and continued working until October 18, 2005. The claimant is now seeking temporary total disability benefits from October 18, 2005 going forward.

The issue before the trial commissioner was whether the claimant had a work capacity. Two medical experts testified in the case. Dr. Brian Peck, who is treating the claimant regarding pain management issues, opined that the claimant was unable to hold gainful employment. The claimant’s surgeon, Dr. Yue, testified that he believed the pro-disc replacement had been successful, having released the claimant to light duty work. He testified that, notwithstanding the claimant’s complaints of numbness and pain in his legs, from an objective standpoint the claimant continues to have a sedentary work capacity.

The trial commissioner noted conflicting testimony from Dr. Yue regarding the causation of the present disability. The commissioner noted Dr. Yue originally attributed the claimant’s disability in the fall of 2005 to a noncompensable injury, and then changed his opinion to place causation on the compensable injury. In his Memorandum of Decision the trial commissioner determined that the testimony of Dr. Peck was less than persuasive. He also concluded that while Dr. Yue’s opinions were slightly more persuasive than Dr. Peck’s that “Dr. Yue’s opinions were influenced by the requests and pressure of Claimant.” Based upon that record, the trial commissioner determined the claimant was not temporarily totally disabled. The claimant filed a Motion to Correct to add additional findings consistent with a conclusion that the claimant was temporarily totally disabled. The trial commissioner denied this motion and this appeal ensued.

The claimant’s appeal is based upon the theory that since both physicians opined that the claimant was either totally disabled, or had an extremely limited sedentary work capacity that the evidence herein was sufficient under the standards in Osterlund v. State, 135 Conn. 498 (1949) to award temporary total disability benefits. The claimant believes since the trial commissioner concluded the claimant was not totally disabled, reversible error is present. We are not persuaded.

We have established a standard of review in cases involving claims for benefits under § 31-307 C.G.S. which we must follow in the present case. As we held in McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007), the standard is as follows:

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).

We also believe two other major factors must be considered herein. We have reiterated that it is the claimant’s burden to prove that they are totally disabled. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). We also have made clear that a trial commissioner may discount medical testimony which he believes is derivative of a patient narrative which the commissioner finds unreliable. Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436, 442 (2008), cert. denied, 287 Conn. 910 (2008).

In the present case the trial commissioner found Dr. Yue more credible than Dr. Peck. Since the commissioner had the right to reject Dr. Peck’s testimony in toto, we need not consider it on appeal. Gagliardi v. Eagle Group, Inc., 4496 CRB 2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam). The claimant argues that even if the trial commissioner relied solely on Dr. Yue’s testimony, that the substance of his testimony would require a finding of total disability. The claimant relies on Gombas v. Custom Air Systems, Inc., 4996 CRB-4-05-9 (September 20, 2006) for this position. As Gombas upheld a trial commissioner who concluded a claimant failed to prove total disability, we do not find the Gombas case stands for disturbing the finding in this case.

In Gombas, the claimant asserted that his job skills were so limited that the burden should be shifted to the respondent to prove that a job existed in which the claimant could perform. We rejected the so-called “odd lot doctrine” and determined that the claimant failed to persuade the trial commissioner that within his work capacity that he had “tried and failed to find employment.” Id. The present case is factually congruent.

The evidence before the trial commissioner was that the claimant determined on his own accord in October 2005 that he could no longer work, and quit his job working on communication installation. His testimony before the trial commissioner was as of that date he considered himself “unemployable.” May 31, 2006 Transcript, p. 30. The record is devoid of evidence the claimant made unsuccessful job searches after that decision, unlike Howard v. CVS Pharmacy, Inc., 5063 CRB-2-06-3 (April 4, 2007). The record also is absent of any evidence the claimant attempted to reenter the work force but was unable to perform a sedentary job. See Latham v. Caraustar Industries, 5241 CRB-2-07-6 (June 25, 2008). The claimant also introduced no expert testimony on the issue of vocational disability, unlike Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006).

Dr. Yue’s deposition testimony stated he believed the claimant possessed some sedentary work capacity. Respondents’ Exhibit 1, pp. 39-40. He testified that he had released the claimant to part time work in a report in early 2006.1 He further testified that at that time the claimant had reached a “steady state” with no discernable changes in muscle or bone mass. Nonetheless, he explained he authored an April 10, 2006 letter stating the claimant was “totally disabled from meaningful employment” because “I depend on a lot of good faith history by the patient when it comes to the neurological aspects of this.” Respondents’ Exhibit 1, p. 34.

Were the trial commissioner to conclude that the claimant’s statements to the expert witness were not offered in good faith, our precedent clearly states that the trier of fact has the ability to disregard medical evidence derivative of such statements. Abbotts, supra. Since the trier of fact did specifically conclude that the claimant had engaged in a prolonged lobbying campaign to obtain enhanced expert testimony supportive of his total disability claim, we cannot find error herein.2

We find this case very similar to another case where the claimant asserted error when a trial commissioner rejected an Osterlund claim, Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007). In Leandres the claimant also asserted his work capacity was effectively nonexistent, but the trial commissioner credited expert testimony that the claimant had a sedentary work capacity. Dr. Yue offered testimony in the present case which the trial commissioner found persuasive that the claimant had some work capacity. In addition, in Leandres the trial commissioner considered the demeanor testimony of the claimant and we held “inferences based on the trial commissioner’s personal observation are within her exclusive dominion.” The trial commissioner in the present case herein specifically stated in his Memorandum of Decision that the claimant’s “testimony as to his work limitations and work capacity must be taken with a grain of salt.” An appellate panel cannot second guess a trial commissioner who finds the claimant’s testimony unpersuasive.

The claimant may believe that Dr. Yue’s standards as to total disability are onerous and that he established a case as compelling as the claimant in Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998). As we pointed out in Leandres, supra, “it is a factual decision whether a claimant can perform marketable labor, Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002), and we cannot revisit the trial commissioner’s findings of fact.” The claimant also argues that the fact he was awarded social security disability benefits should have convinced the trial commissioner to award benefits under Chapter 568, but as we pointed out in Hernandez, supra, the standard used to award these benefits is not binding on this Commission. 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 v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006).

As a result, we conclude the trial commissioner’s determination was a reasonable exercise of his discretion. The burden of proof in a workers’ compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001); Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006). The evidence presented by the claimant simply, as a matter of law, did not compel the trial commissioner to determine that the claimant was totally disabled. We affirm the Finding and Dismissal and dismiss this appeal.

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

1 Dr. Yue testified that he had released the claimant to work in February, although the actual date of the relevant medical report was January 27, 2006. BACK TO TEXT

2 We note that the claimant’s testimony before the trial commissioner indicates that he had not worked since October 2005 when he left his communication installation job and was not working in the spring of 2006; wherein Dr. Yue testified the claimant had advised him prior to the issuance of the April 10, 2006 letter he had tried and failed at clerical work. BACK TO TEXT

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