State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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McInnis v. Shelter Workz

CASE NO. 5299 CRB-3-07-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 11, 2009

JAMES McINNIS

CLAIMANT-APPELLEE

v.

SHELTER WORKZ

EMPLOYER

and

AIG CLAIMS SERVICES

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Richard Lynch, Esq., Lynch, Traub, Keefe & Errante, 52 Trumbull Street, P.O. Box 1612, New Haven, CT 06506.

The respondents were represented by Colin Hoddinott, Esq., Law Offices of Jack V. Genovese, II, 200 Glastonbury Boulevard, Suite 301, Glastonbury, CT 06033.

This Petition for Review1 from the November 15, 2007 Finding and Award of the Commissioner acting for the Third District was heard April 24, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter have appealed from a Finding and Award which determined that the claimant was totally disabled during a period of time subsequent to his compensable injury. They argue that this decision was not supported by sufficient probative evidence. We determine the trial commissioner did have sufficient grounds to justify his decision. Moreover, to the extent there was a delay in when expert testimony was presented on the issues herein, such amounts to a “self-created hardship” on the part of the respondent AIG, who failed to provide the claimant timely access to a specialist.2 As a result, we affirm the Finding and Award and dismiss this appeal.

The trial commissioner reached the following findings at the conclusion of a formal hearing. On June 27, 2005 the claimant was employed by the respondent Shelter Workz when he sustained a work-related lumbar spine injury. Following that injury, the claimant treated at the Occupational Health and Rehabilitation Clinic. The claimant returned to light duty work with a restriction of no lifting over 25 pounds and limited bending. The claimant was then provided light duty work and commenced physical therapy. This work involved counting screws and placing them in a bag. The claimant was seated while performing this work and the box of screws weighed about one pound. The claimant alleges that he could not perform the light duty work because he had back pain and could not sit for a long period of time. He communicated this to his supervisor.

The claimant then visited Occupational Health and Rehabilitation again on or after June 29, 2005 and was again returned to light duty work. This work was even lighter than the prior work, but the claimant alleges he could not perform the work. He advised Mr. Thomas Curtin, in the Human Resources Department, that he could not perform the light duty job. Mr. Curtin advised the claimant he would be terminated if he did not perform the light duty work. A series of events, including a meeting, a phone call and letters transpired, including a letter on June 28, 2005 informing the claimant he was to return to the light duty job by June 30, 2005 and if he did not return, it was to be considered that he had abandoned his job and he would be terminated. The claimant did return to work on June 30, 2005, and then left after a brief period of time because of back pain.

The claimant’s physician, Dr. John Pito, reduced his lifting restriction from 15 pounds to 10 pounds on July 6, 2005. The next day the claimant was required to submit an updated medical status report to the respondent or he would be terminated from his employment. On July 13, 2005, the claimant missed his scheduled physical therapy session as well as his appointment with Dr. Pito. On July 18, 2005, Thomas Curtin sent the claimant a letter indicating that he had voluntarily quit his job and he was terminated as of July 15, 2005.

In late July the claimant’s physical therapist indicated that the claimant demonstrated a lack of progress with pain and range of motion. Since his progress and attendance at physical therapy was poor, he was referred back to his physician. On July 22, 2005 Dr. Pito indicated that the claimant had not improved with conservative treatment and he referred him for an evaluation and therapy. On August 17, 2005, Dr. Pito called Tom Curtin to find out if the claimant had been scheduled to see an orthopedic surgeon and learned that the claimant had been terminated and he had not been seen by a specialist.

The claimant was unable to see a specialist until he was examined by Dr. Michael Murphy in June 2006. On June 15, 2006, Dr. Murphy examined the claimant and diagnosed a herniated lumbar spine disc and chronic back and leg pain. Dr. Murphy is of the opinion that the claimant was totally disabled when he began treating him in June 2006. Dr. Murphy indicated that he was of the opinion that the claimant’s lumbar spine herniation was related to his June 2005 work injury.

A Form 36 light duty work release was approved by the Commission on August 29, 2005. The claimant also has sought unemployment benefits and indicated that he was able and available to perform full-time work. The claimant however alleges that he was totally disabled since June 27, 2005 and that he should have been authorized to be seen by an orthopedic physician when Dr. Pito made the referral in July 2005. This claim seeks temporary total disability benefits from June 28, 2005 until the claimant was examined by Dr. Murphy on June 15, 2006.

Based on the foregoing subordinate facts the trial commissioner found the claimant sustained a work-related lumbar spine herniated disc. He determined that the respondent-employer prevented the claimant from being evaluated in July 2005 by an orthopedic specialist that had been recommended by a physician at the occupational clinic. Since the claimant was determined to be totally disabled when he finally was examined, the respondent was ordered to pay temporary total disability benefits from the date that Dr. Pito made his referral to a specialist on July 22, 2005 through the date that Dr. Murphy examined the claimant on June 15, 2006.

The respondents subsequently filed a Motion to Correct which was denied in its entirety. They then appealed to this board, asserting that the commissioner’s award was legally deficient.

It is clear that our law requires a respondent to provide to injured workers appropriate and timely medical care. We look to the specific terms of § 31-294d(a)(1)C.G.S.

The employer, as soon as the employer has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services and prescription drugs, as the physician or surgeon deems reasonable or necessary. The employer, any insurer acting on behalf of the employer, or any other entity acting on behalf of the employer or insurer shall be responsible for paying the cost of such prescription drugs directly to the provider. (Emphasis added)

In the present matter, the claimant’s initial treating physician, Dr. Pito, recommended that the claimant be examined by a specialist on July 22, 2005. This examination did not occur until June of the next year, at which time the claimant was determined to be totally disabled. The respondents are challenging the adequacy of the claimant’s evidence for total disability during this time period. The obvious problem herein is the delay was occasioned by the respondents’ response to the treating physician’s recommendation. It appears the trial commissioner was concerned over the equity of penalizing the claimant under these circumstances and we share this concern. As we stated in a prior case involving AIG, Mohamed v. Domino’s Pizza, 5352 CRB-6-08-6 (April 22, 2009) our public mission “is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.” Pietraroia v. Northeast Utilities, 254 Conn. 60, 74 (2000). It is clear that the claimant did suffer a delay in receiving appropriate treatment for his injuries in this instance. Our system is intended to prevent delays in compensation from penalizing the injured, Casey v. Northeast Utilities, 249 Conn. 365, 379 (1999), and in this case, the delay was in providing appropriate medical treatment. The failure to provide a prompt diagnosis in this matter can hardly be laid at the claimant’s feet given the facts of this case.

We think a comparison to another recent case Diaz v. Jaime Pineda a/k/a Jamie Pineda d/b/a J.P. Landscaping Company, 5244 CRB-7-07-7 (July 8, 2008) is instructive. In Diaz the claimant sought to introduce late evidence from a medical specialist he did not have at the time of the formal hearing. We rejected this motion for the following reasons.

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 Fund points to the absence of any referral from the treating physician to Dr. Rubinstein and the record does not reflect the claimant made an effort to obtain this testimony prior to the hearing by utilizing this avenue.

In the present case, conversely, the claimant did obtain a referral to see a specialist, but the respondents failed to act upon it in a timely fashion. The claimant followed appropriate guidelines in seeking the care he was entitled to receive under our statute.

We now turn to the question posed by the respondents who argue the evidence does not support an award for total disability benefits. Our evaluation must provide appropriate deference to the factual findings of the trial commissioner.

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 Deparment 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’s Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

Diaz, supra.

In the present matter Dr. Murphy offered uncontroverted medical testimony that the claimant was totally incapacitated from employment. Claimant’s Exhibit A. The respondents argue that there is “no medical evidence” supporting a finding of disability prior to the date of Dr. Murphy’s report. Respondents’ Brief, p. 7. We believe this approach requires one to overlook the obvious. Dr. Murphy related the claimant’s present condition to his injury of June 27, 2005. There is no evidence in the record that points to any event that would have materially changed the claimant’s medical condition between suffering his compensable disc herniation and his examination by Dr. Murphy. We believe the trial commissioner reasonably inferred from this uncontroverted evidence that the claimant had been disabled for this entire period.

The respondents offer two other arguments which we find unpersuasive in this instance. They argue that the claimant should be barred from obtaining benefits because he was terminated by his employer from a light duty job. They also argue that the claimant should be limited to partial disability benefits since he was seeking work during his period of disability. Neither argument compels the reversal of the trial commissioner.

A trial commissioner may properly consider a dismissal from a light duty job as tantamount to refusing to perform light duty work, and therefore find the claimant failed to establish he was willing to work. However, such a decision is left to the discretion of the trial commissioner. Such a termination “is not an absolute bar to receiving benefits.” Fountain v. Coca Cola Bottling Company, 5328 CRB-1-08-3 (February 18, 2009), citing Levey v. Farrell Corp., 3649 CRB-4-97-7 (July 30, 1998).

The claimant’s willingness to work is then cited by the respondents for the contrary argument, that he should be barred from receiving total disability benefits as a result of his efforts to seek a job and his filing of an unemployment insurance claim.3 We do note 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). In the present case, the claimant provided medical evidence supportive of this finding. To the extent the claimant’s effort to obtain employment countered the medical evidence amounts to revisiting the trial commissioner’s evaluation of the facts, which we cannot do as an appellate panel. Certainly, the trial commissioner could properly consider the claimant’s inability to perform the light duty work proffered by the respondents as evidence of total disability Latham v. Caraustar Industries, 5241 CRB-2-07-6 (June 25, 2008). A claimant who is “willing” to work, but not “able” to work, may properly receive benefits under § 31-307 C.G.S.

Whether or not a claimant can perform marketable labor is ultimately a factual decision for the trial commissioner to make. Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002). Moreover, the trial commissioner had the opportunity to evaluate the claimant first-hand and ascertain whether he appeared to be capable of performing remunerative labor. Pursuant to Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007) and Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) the trial commissioner’s evaluation of the claimant’s condition after he observes his live testimony is not subject to reversal by an appellate panel. Smith v. Waterbury, 5326 CRB-5-08-3 (February 4, 2009).4

We find no error on the part of the trial commissioner. The Finding and Award is affirmed and the appeal is dismissed.

Commissioners Peter C. Mlynarczyk and Christine L. Engel concur in this opinion.

1 We note that a postponement and an extension of time were granted during the pendency of this appeal. BACK TO TEXT

2 This concept is defined in Connecticut law in such cases as M & R Enterprises, Inc. v. Zoning Board of Appeals, 155 Conn. 280, 282 (1967), “this court has repeatedly held that where the claimed hardship arises because of the applicant’s own voluntary acts, the zoning board is without power to grant a variance.” BACK TO TEXT

3 In their brief, respondents argue the claimant would receive a windfall were he to receive a compensation award for the same period he received unemployment benefits. Respondents’ Brief, p. 8. However, all such benefits are subject to a statutory right of reimbursement to the Unemployment Compensation Fund pursuant to 31-258 C.G.S. Rodrigues v. American National Can, 4043 CRB-5-99-4 (July 26, 2000). BACK TO TEXT

4 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the claimant’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record they would not have compelled a different result. D’Amico v. Department of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT

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Page last revised: June 18, 2009

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