CASE NO. 5401 CRB-1-08-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 17, 2009
STATE OF CONNECTICUT CAPITAL COMMUNITY TECHNICAL COLLEGE
GAB ROBINS OF NORTH AMERICA
The claimant was represented by Jan P. van der Werff, Esq., Law Offices of Jan P. van der Werff, One Barnard Lane, Bloomfield, CT 06002.
The respondent was represented by Lawrence G. Widem, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the November 7, 2008 Finding and Award of the Commissioner acting for the First District was heard May 29, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Randy L. Cohen and Stephen B. Delaney.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent in this matter has appealed from a Finding and Award granting the claimant temporary total disability benefits. The respondent argues that the trial commissioner should not have awarded such benefits to the claimant, asserting the facts presented in evidence did not support this relief. On appeal, we find the claimant did proffer medical evidence that he was totally disabled. When considered in conjunction with the claimant’s inability to perform his prior job, we find a sufficient basis existed for the trial commissioner to award benefits under § 31-307 C.G.S. We affirm the Finding and Award and dismiss this appeal.
The trial commissioner reached the following findings of fact at the conclusion of the formal hearing. The commissioner found the claimant has been employed for approximately 20 years at Capital Community College as a Buildings and Grounds Patrol Officer, and had been a Lead Patrol Officer for the past ten years. On June 27, 2007 the claimant fell down on a ramp in the parking garage, injuring his back and head. He was taken by ambulance to St. Francis Hospital emergency room. Following the fall the claimant suffered from lower right back pain, pain in his right leg, a lump on the back of his head, neck pain and lower left hand pain. After treating at the emergency room the claimant began treating with Dr. Richard Harrison-Atlas, who temporarily totally disabled the claimant and prescribed pain medications and physical therapy.
On July 17, 2007 an MRI was performed on the claimant at Dr. Harrison-Atlas’s direction. The test indicated a disc bulge at L5-S1 with the potential to impinge on the right-sided exiting L5 nerve root. Subsequent to the MRI, the claimant continued to experience “sharp pain to my lower right side of my back that would shoot pains down to my right leg, about down to the knee.” The claimant testified to suffering similar pain “in the exact same area” he had been experiencing following the accident, stating such pain “seems to be everyday for me.”
Dr. Harrison-Atlas referred the claimant to a neurosurgeon, Dr. Stephan Lange. Dr. Lange did identify what he described as a “degenerative disc bulge” on the MRI, but did not assign a permanency rating to the claimant since he believed he had “a normal examination.” Dr. Lange did not recommend any further aggressive care for the claimant and left the decision on whether the claimant could return to work up to Dr. Harrison-Atlas. Dr. Harrison-Atlas did not return the claimant to work after his examination by Dr. Lange.
In the fall of 2007 the claimant became frustrated with being out of work and in December 2007 the claimant “begged” Dr. Harrison-Atlas to return him to work on a trial basis. On January 2, 2008, the claimant returned to work and within a few hours of beginning his work day suffered from “. . . incredible pains in the same area, the lower right back, which was shooting pain down my right leg.” The claimant’s supervisor, James Griffin, noted that on January 2, 2008, the claimant appeared ashen and walked with a very pronounced limp. On January 8, 2008, the claimant returned to Dr. Harrison-Atlas who wrote that the claimant had been back to work for two weeks. This was an error as the claimant had only been back to work for six days. At that time Dr. Harrison-Atlas cleared the claimant for work, but advised him to avoid restraints. Lidoderm patches at this time did not improve the claimant’s condition, so in February 2008 Dr. Harrison-Atlas’s reports indicated the claimant would be referred to an orthopedic surgeon.
In a report from Dr. Harrison-Atlas dated February 5, 2008, the doctor opined the claimant was at maximum medical improvement. However, the doctor had also opined the claimant still suffered from back pain, was limping, and the Lidoderm patches were not helping. Dr. Harrison-Atlas also noted the claimant was walking very slowly and his back had a decreased range of motion in all directions. On February 26, 2008 the claimant reported a new injury following pushing a small quantity of snow off his driveway. Dr. Harrison-Atlas continued to relate the claimant’s back pain to the original fall at work. On March 3, 2008, Dr. Harrison-Atlas recommended the claimant stay out of work.
The trial commissioner considered the testimony of the claimant, who stated that he had received two epidural steroid injections from Dr. Michael J. Murphy starting in April 2008. The claimant said he received temporary relief from these injections and that after he started getting these injections that he “probably” had enough work capacity to sit at a desk. The claimant said he had been seeking sedentary work since April 2008 but had not sought any vocational rehabilitation services from the Commission or another provider as he did not believe they were available to him. The claimant said he did not believe there was light duty work available through his employer. The claimant’s supervisor, Mr. Griffin, testified that sedentary work was not available to the claimant unless he sought a demotion. The claimant had not sought a demotion.
The commissioner finally considered the medical reports of Dr. Harrison-Atlas and Dr. Murphy. In a form prepared for the claimant’s employer dated March 17, 2008 Dr. Harrison-Atlas opined that the claimant was temporarily totally disabled due to “severe low back pain.” Dr. Harrison-Atlas said the duration of this incapacity was “unknown”. Dr. Murphy examined the claimant on April 7, 2008 and April 24, 2008. A new MRI performed at that time caused Dr. Murphy to diagnose “Chronic back and right leg pain secondary to right-sided L5-S1 disc protrusion.” Dr. Murphy indicated that claimant could be a surgical candidate if the epidural injections proved unsuccessful. He did not comment on work capacity.
Based on these subordinate facts the trial commissioner concluded that the claimant’s testimony as to the cause of his injury and the symptoms of the injury was credible and persuasive. She concluded that although the claimant attempted to return to work, as a result of the failure of the claimant to perform this job that the claimant remained totally disabled from June 27, 2007 until the date of the formal hearing. She found the claimant’s self-professed work capacity to be “severely limited” and inconsistent with the opinion of the treating physician. She did not find the opinions of Dr. Lange credible or persuasive. She also did not find the February 26, 2008 incident caused a new injury. Since the trial commissioner found the claimant remained totally disabled as a result of the compensable injury, she awarded the claimant temporary total disability benefits.
The respondent filed a number of post-decision motions: a Motion to Correct, a Motion for Articulation and a Motion for Memorandum of Decision. Each motion was denied by the trial commissioner and the respondent has pursued this appeal.
The respondent’s argument is essentially that the claimant believed he had a work capacity and in light of that fact, the trial commissioner was limited to awarding the claimant benefits under § 31-308(a) C.G.S. for temporary partial disability benefits. They cite LaPierre v. UTC/Pratt & Whitney, 4305 CRB-8-00-10 (October 23, 2001) as authority that would compel this panel to reverse the trial commissioner. Upon review, we find that LaPierre stands for the proposition that a trial commissioner is entitled to reach their own conclusion as to the facts presented. Therefore, we are not persuaded by this authority.
In LaPierre, supra, we upheld the trial commissioner’s determination that based on the evidence presented in that case the claimant was only entitled to four weeks of temporary total disability benefits. We also upheld the trial commissioner’s determination that temporary partial disability benefits in that case were limited to the period in which the claimant performed a work search. Our reasoning therein went to the deference we grant trial commissioners to weigh this sort of evidence.
Although our statutes do not require a claimant to perform a work search, it has been accepted as one evidentiary basis to demonstrate willingness to work and the availability of suitable light duty employment . . . . In the instant case, it was within the discretion of the trial commissioner to require documentation of job search efforts in order to demonstrate that the claimant was “ready and willing” to perform light duty work, especially where, as here, the credibility of the claimant’s testimony was at issue.
Whether a claimant is totally disabled is a factual question for the trier to determine. When a claimant asserts that she is totally incapacitated, the burden of proving such a disability falls on her . . . . In the instant case, the trial commissioner’s determination that the claimant was temporarily totally disabled for only four weeks following the September 13, 1999 surgery is fully supported by the deposition testimony of Dr. Schutzer. Id. (Internal citations omitted).1
In the present case the trial commissioner concluded that the claimant was totally disabled based on the medical evidence presented by Dr. Harrison-Atlas. Dr. Harrison-Atlas’s March 17, 2008 report was clearly persuasive to the trial commissioner, Finding, ¶ 36, and in that report the treating physician unequivocally states the claimant was totally disabled for an indefinite duration. We also note that the trial commissioner cited Dr. Harrison-Atlas’s March 3, 2008 report which stated “[t]he patient is not able to perform their usual duties at home or work.” Finding, ¶ 27. (Emphasis added) Such expert opinion would suggest that the claimant would lack even a sedentary work capacity.
Notwithstanding this evidence, what the respondent seems to suggest is the claimant’s lay opinion should be credited on this issue as opposed to that of his treating physician. The Appellate Court recently rejected such an approach on the issue of medical causation, Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 677-679 (2008). We are unwilling to reverse a trial commissioner who finds a claimant totally disabled when an expert witness concurs in this conclusion. As we stated in Kennedy v. State/Department of Correction, 5238 CRB-1-07-6 (June 26, 2008), “[a] claimant must generally proffer medical evidence that demonstrates he or she is totally disabled within a reasonable medical probability.” The trial commissioner relied on such evidence.
Moreover, precedent before this panel that postdates LaPierre makes clear that when a claimant seeks to perform work, but fails to perform it due to their compensable injury, such failure constitutes probative evidence the trial commissioner can rely on for a finding of total disability. In Latham v. Caraustar Industries, 5241 CRB-2-07-6 (June 25, 2008) the claimant sought to return to the workforce and worked for a week, but due to pain from her compensable injury, was unable to perform the job she obtained. We concluded such an inability to perform work went to the “‘tenets of employability’ regarding consistent work performance” and consistent with our prior decision in Howard v. CVS Pharmacy, Inc., 5063 CRB-2-06-3 (April 4, 2007), it justified an award of § 31-307 C.G.S. benefits. We find the facts in this case sufficiently similar to Latham and Howard to justify the commissioner’s decision herein.
We finally note that the trial commissioner only found the claimant credible and persuasive “as to the cause of his injury and his description of his symptoms;” Findings ¶ b. We believe we may reasonably infer she did not find the claimant credible on the issue of work capacity.2
The respondent finally suggests the claimant should have been required to have made more diligent efforts to obtain light duty work. They also argue the trial commissioner should have credited Dr. Lange’s opinions as to the claimant’s work capacity. These issues are factual in nature. We must affirm such factual determinations unless they are “clearly erroneous.” Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006). They also argue the trial commissioner reached “inconsistent findings.” Respondent’s Brief pp. 10-12. We are not persuaded the conclusions she reached are inconsistent with the subordinate facts on the record. We are satisfied the trial commissioner relied on probative evidence herein, and affirm the Finding and Award.3
The appeal is therefore, dismissed.
Commissioners Randy L. Cohen and Stephen B. Delaney concur in this opinion.
1 The respondent cited the decision of Laliberte v. United Security, 4264 CRB-5-00-7 (July 26, 2001), aff’d, 261 Conn. 181 (2002) both in their brief and at oral argument. We note that in their brief the respondent cited the Chairman’s dissent. While this may be persuasive, it cannot serve as a basis for stare decisis. An analysis of this opinion reflects the issue involved receipt of temporary total benefits when a person was incarcerated. Such issues are not present herein. The majority opinion, which it appears the respondents relied on at oral argument, makes clear “[a] trial commissioner is empowered to decide as a matter of fact whether a claimant is totally disabled. Garcia v. Bridgeport, 3595 CRB-4-97-4 (June 8, 1998).” Id. We therefore are not persuaded the present case is at odds with Laliberte, supra. BACK TO TEXT
2 For this reason, we do not find the trial commissioner “failed to include material facts” in her Finding & Award. Respondents’ Brief, pp. 8-10. The respondent argues the commissioner should have dealt in greater detail with the specifics of the claimant’s testimony. We disagree. We believe the commissioner properly addressed the claimant’s testimony in Finding, ¶¶ 31-35. BACK TO TEXT
3 We uphold the trial commissioner’s denial of the respondent’s Motion to Correct. This motion sought to interpose the respondent’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. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 728 (2002). BACK TO TEXT