CASE NO. 5292 CRB-4-07-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 28, 2008
JERRI A. GRANT
SIEMENS WESTINGHOUSE POWER CO.
TRAVELERS INSURANCE COMPANY
The claimant appeared pro se.
The respondents were represented by Richard Aiken, Jr., Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the November 7, 2007 Findings and Orders of the Commissioner acting for the Fourth District was heard June 27, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Jack R. Goldberg.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter is appealing the Findings and Orders reached by the trial commissioner in this matter. The trial commissioner concluded that the claimant was not totally disabled as of September 11, 2002 and as a result, granted the Form 36s filed by the respondent. The commissioner also denied a claim for benefits under § 31-308(a) C.G.S. The claimant has appealed the decision denying her these benefits. Concluding that the trial commissioner had probative evidence supporting his decision, we uphold the Findings and Orders and dismiss this appeal.
Certain facts are essentially undisputed in this case. The claimant was an employee of the respondent Siemens Westinghouse Power Co. at a job site in Bridgeport on April 9, 2001 when she was assaulted by a co-worker and sustained physical injuries to her right shoulder and lumbar spine. She also has had psychiatric treatment following the incident. The claimant has received medical treatment as a result of the assault and received temporary total disability benefits from April 10, 2001 until a Form 36 was approved as of May 28, 2004.
Following the 2001 assault the claimant treated with a variety of doctors, including Dr. Alfredo Axtmayer for her orthopedic injuries, Dr. Thomas Moran for her right shoulder injuries and Dr. Kenneth Kramer for her lumbar spine injuries. She also treated with Dr. Scott Grove for alleged psychiatric injuries resulting from the assault.
The respondents had the claimant examined by their expert witnesses in 2002. On September 11, 2002 the respondent filed two Form 36s seeking to terminate the claimant’s temporary total benefits. The forms affixed a report from Dr. Edward Staub, an orthopedic doctor, asserting that the claimant’s physical injuries had reached maximum medical improvement, and a report from Dr. Marc Rubenstein, a psychiatrist, asserting the claimant’s psychiatric condition did not prevent her from returning to work. The trial commissioner held a decision on whether to approve these Form 36s in abeyance pending a commissioner’s examination by Dr. Kenneth Selig, who is board-certified in psychiatry and neurology.
The commissioner’s examination was delayed for some period as the claimant missed scheduled meetings, but Dr. Selig did examine the claimant at three separate times in 2003, 2005, and 2006. Dr. Selig issued his report on April 4, 2007. Dr. Selig opined that the claimant does not suffer from post-traumatic stress disorder. While he did believe the claimant suffered emotional stress as a result of the April 9, 2001 work incident, he did not believe the incident resulted in a brain injury or permanent impairment and that the claimant was “fully capable of working on a psychiatric basis.” Respondents’ Exhibit 22, p. 28. He also opined he did not find the claimant credible.
The claimant’s treating physicians had cleared her to return to work prior to the conclusion of the formal hearing. Both Dr. Moran and Dr. Kramer had cleared the claimant to return to light duty work based on her physical condition as of December 2002. The claimant’s psychiatrist, Dr. Grove, gave her a restricted duty work capacity as of May 28, 2004.1 The claimant asserted at the formal hearing that she should be awarded benefits under § 31-308(a) C.G.S. commencing on that date.
At the formal hearing, the respondents produced a number of fact witnesses on the issue of the claimant’s work capacity. Robert Garofalo, Shahan Karim and Spencer Cosgrove all testified that the claimant had performed remodeling work on residences in Fairfield during 2001 and 2002. The claimant denied having done this remodeling work and has challenged the credibility of these witnesses.
Based on this evidence the trial commissioner concluded the claimant had suffered a work-related injury on April 9, 2001. The trial commissioner also found, however, that the claimant had demonstrated that she had an earning capacity by performing remodeling work in late 2001 and 2002. The trial commissioner also cited extensively from the report issued by the commissioner’s examiner, Dr. Selig, who determined that the claimant was not totally disabled and had not suffered a permanent impairment due to the April 9, 2001 incident. Based on those findings, the trial commissioner determined that the claimant had a work capacity on September 11, 2002 and, therefore the Form 36s filed by the respondents were approved as of that date. The trial commissioner further denied the claimant’s request for § 31-308(a) C.G.S. benefits subsequent to May 28, 2004. The claimant, proceeding pro se, has appealed from this decision.
The claimant asserts a number of alleged errors on the part of the trial commissioner, but we have a limited scope of review as an appellate panel. “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). We must uphold a trial commissioner’s conclusions “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).
We note at the outset that the claimant has not filed a Motion to Correct the trial commissioner’s Findings and Orders. As we pointed out in Vitoria v. Professional Employment & Temps, 5217 CRB-2-07-4 (April 4, 2008) “[a]s a result, pursuant to Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6, 4948 CRB-2-05-5 (July 26, 2006); Soto-Velez v. Michael’s Chrysler Plymouth, 4628 CRB-2-03-2 (February 3, 2004); and Crochiere v. Enfield-Board of Education, 227 Conn. 333, 347 (1993) we must accept the validity of the facts found by the trial commissioner as this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4.” Id. The claimant, however, has filed a motion to submit additional evidence. She claimed her attorney committed error by not presenting various medical reports into evidence before the trial commissioner.
The Appellate Court outlined the standard for review under Admin. Reg. § 31-301-9 when a party seeks to present previously unconsidered evidence directly to this panel. In Mankus v. Mankus, 107 Conn. App. 585 (2008) the court set out the following requirement.
Thus, in order to request the board to review additional evidence, the movant must include in the motion 1) the nature of the evidence, (2) the basis of the claim that the evidence is material and (3) the reason why it was not presented to the commissioner. Id., at 596.
In Mankus, the Appellate Court concluded that claimant failed to provide a sufficient explanation as to why the evidence should be admitted post-hearing. We followed a similar line of reasoning in Diaz v. Jaime Pineda a/k/a d/b/a J.P. Landscaping Company, 5244 CRB-7-07-7 (July 8, 2008). In Diaz we outlined the following requirement to consider evidence not presented at the formal hearing,
A party who wishes to submit additional evidence to this board must prove that they had good reasons not to present such evidence at the formal hearing Carney-Bastrzycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004). The respondent Second Injury Fund (The “Fund”) points out that in Smith v. UTC/Pratt & Whitney, 3134 CRB 3-95-6 (June 4, 1996) we held the moving party in such a motion must establish the evidence could not have been obtained at the time of the original hearing.
The claimant has not offered a cogent explanation as to why her former attorney did not present the additional evidence she seeks to have admitted post-hearing. We conclude therefore, “granting this motion would be inconsistent with our reasoning in Green v. General Motors Corporation New Departure, 5111 CRB-6-06-7 (August 21, 2007) where we held “[w]e agree with the respondents that the claimant’s motion to submit additional evidence is an effort to try the case in an inappropriate piecemeal fashion. Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001).” Diaz, supra.
The claimant’s other arguments on appeal are directed at the trial commissioner allegedly placing improper reliance on the testimony of the commissioner’s examiner and improperly crediting the testimony of the witnesses who testified as to her work on remodeling projects. She calls Dr. Selig a “Traveler’s doctor” and asserts that Robert Garofalo, Shahan Karim and Spencer Cosgrove were biased witnesses who should not have been credited by the trial commissioner. These claims go to the fact finding prerogative of the trial commissioner and, particularly in the absence of a Motion to Correct, are generally impervious to appeal.
As a matter of law, a trial commissioner is expected to extend deference to the conclusions of the commissioner’s examiner, who is not retained by a party to the controversy. See Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006) and Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003). We find that Dr. Selig’s report was detailed and consistent with probative evidence from other witnesses. Unlike Ben-Eli, supra, the trial commissioner did not find the underpinning of Dr. Selig’s report unreliable; hence, there was no error for the trial commissioner to rely on the report’s conclusions.
Also, as a matter of law, we must respect the trial commissioner’s conclusion that the witnesses who testified about the claimant’s remodeling work were credible. Resolving a credibility dispute “is uniquely and exclusively the province of the trial commissioner.” Smith v. Salamander Designs, Ltd., 5205 CRB-1-07-3 (March 13, 2008). The evidence proffered that the claimant installed sinks and carpet went directly to the issue of whether the claimant was totally disabled from gainful employment. As we pointed out in Russell v. State/Dept. Developmental Services Southbury Training School, 5212 CRB-5-07-3 (March 18, 2008).
The plaintiff is entitled to total disability benefits under General Statutes § 31-307 (a) only if he can prove that he has a total incapacity to work . The plaintiff [bears] the burden of proving an incapacity to work. Sellers [v. Sellers) 80 Conn. App, 15, 20 (2003)].
The trial commissioner concluded the claimant failed to meet her burden of proving that she had a total incapacity to work as of the date of the respondent’s September 11, 2002 Form 36s. As probative evidence supports this finding, we cannot disturb that finding on appeal.2
Finally, the claimant argues that since she was awarded social security disability benefits that this Commission should also award her disability benefits after considering the favorable ruling she has received from the Social Security Administration. We discussed this issue in Dzienkiewicz v. State/Department of Correction, 5211 CRB-8-07-3 (March 18, 2008) and determined it was not a persuasive argument:
This board has stated on a number of occasions that the standards applied to determine whether to grant a social security disability award are considerably different than the standards we apply to award benefits under the Connecticut Workers’ Compensation Act. See 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 standards of the Social Security Administration in adjudicating total disability are not the same standards used by our workers’ compensation commission and, thus, a commissioner may decline to admit them into evidence. Bidoae, supra, 480-481.”
We find no error, dismiss this appeal and herein affirm the Findings and Orders.
Commissioners Scott A. Barton and Jack R. Goldberg concur in this opinion.
1 A Form 36 was approved as of that date, changing the claimant’s status from temporary total disability to temporary partial disability. BACK TO TEXT
2 We also find the claimant has failed to provide a cogent explanation as to why the trial commissioner erred in rejecting the claim for § 31-308(a) C.G.S. benefits. We herein affirm his decision on that issue as well. BACK TO TEXT