CASE NO. 5574 CRB-7-10-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 21, 2011
FRANK M. CHIMBLO
CONNECTICUT LIGHT & POWER
NORTHEAST UTILITIES CLAIMS SERVICE
The claimant was represented by James T. Baldwin, Esq., with Marisa Schafer, Esq., on the brief, Coles, Baldwin & Kaiser, LLC, 1261 Post Road, Fairfield, CT 06824.
The respondent was represented by Michael M. Buonopane, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review from the July 15, 2010 Finding and Award of the Commissioner acting for the Seventh District was heard on December 17, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.
JOHN A. MASTROPIETRO, CHAIRMAN. Respondent Connecticut Light & Power Company has petitioned for review from the July 15, 2010 Finding and Award of the Commissioner acting for the Seventh District. We find no error and accordingly affirm the decision of the trial commissioner.
The following factual background is pertinent to our review.1 The claimant alleges that he sustained an injury to his low back on October 15, 1976 and on May 9, 1979.2 Since September of 1999, the claimant has been a member of Chimblo Real Estate Enterprises, LLC, (“CRE”) a closely-held family corporation.3 As a member of CRE, he periodically received profit distribution checks from the corporation’s real estate investments. The claimant testified that in July 2008, he assumed a management position with CRE for which he paid himself $12,000.00 per month during the time period between July 2008 and June 2009. The claimant’s duties included making daily decisions with regard to the maintenance and upkeep of the properties. Although the position did not have a physical component, the claimant testified that it did become a “24/7 job.” October 22, 2009 Transcript, p. 7. The claimant’s sister, Susan Ambrosio, also testified at trial and corroborated the claimant’s testimony that he was not performing any physical labor as part of his managerial duties.
According to both the claimant and his sister, a dispute ultimately arose among the members of CRE regarding the value of the claimant’s managerial services. The other members objected to the claimant’s unwillingness to perform even the most basic maintenance on the properties and his decision instead to hire subcontractors to handle all necessary labor. The other members believed they could contract out the managerial services performed by the claimant for less than $12,000.00 per month. In June of 2009, CRE relieved the claimant of his managerial duties and he no longer collected the $12,000.00/month salary for same.
At trial, the respondent asserted that, in addition to the labor dispute, the claimant was discharged from his managerial position with CRE for reasons relative to the mismanagement of CRE assets. In support of its position, the respondent introduced a writ, summons and complaint from a Superior Court action brought against the claimant by his siblings, the other members of CRE. The respondent also contended that the claimant was not totally disabled during the period from June 29, 2009 to December 15, 2009 given that the claimant’s managerial and/or supervisory skills arising from his duties with the family-owned real estate business suggest that the claimant possessed at the very least a light-duty work capacity.
The trial commissioner found that an MRI taken on July 25, 2008 revealed disc degeneration at multiple levels including thecal sac compression at several levels, a small broadbased posterior mid-line disc protrusion at L3-4 with facet arthrosis, operative changes at L4-5 and L5-S1, and mild to moderate left neural foraminal stenosis causing mild impingement of the left L5 nerve root. A second MRI taken on November 12, 2009 revealed severe degenerative disc disease from T12 to S-1 and osteoarthritis with multilevel disc pathology and spinal stenosis from T12 to S1.
On April 29, 2009, Peter J. Moley, M.D., a neurosurgeon, opined that the claimant may require back surgery if his condition failed to improve after three or four months of physical therapy. On June 29, 2009, Anthony Alleva, M.D., the claimant’s treating primary care physician, rendered the claimant temporarily totally disabled until he completed the recommended physical therapy regimen and was re-evaluated and cleared for a return to work. At his deposition, Dr. Alleva testified at length regarding the substantial restrictions he had placed upon the claimant. However, the doctor testified that the claimant did not report any significant aggravation of his back condition as a result of the managerial duties he was performing for the family business and that he never took the claimant out of work because of a medical concern stemming from those duties.
The claimant was also seen by Lawrence Schweitzer, M.D., who performed a respondent’s medical examination of the claimant on November 12, 2009. At the time of this examination, Dr. Schweitzer reported that the claimant’s “chief complaint is muscle pain and stiffness in the lower back with a driving toothache-type pain that comes and goes.” Respondent’s Exhibit 2, p. 14. Dr. Schweitzer diagnosed the claimant with “status post disk herniation to L4-L5 multi-level degenerative disc disease from L2 to the sacrum, that’s basically the whole spine, and he had a narcotic dependency.” Id., at 8. The doctor opined that the claimant had a full-time work capacity with restrictions including no repetitive bending, no significant lifting, and no prolonged periods of sitting.
The trier also found that for many years, the claimant has followed a prescription drug regimen consisting of Oxycontin, Percocet, Celebrex and Prevacid for treatment of his work-related back injury. Dr. Alleva, who prescribes the claimant’s medications, testified at deposition that the claimant has been taking Oxycontin since at least 2002. Although Dr. Schweitzer opined that the amount of pain medication being taken by the claimant would “kill” the average person, Respondent’s Exhibit 2, pp. 67-68, he indicated that he concurred with the high amount of pain medication being taken by the claimant because the doctor does not consider the claimant to be a surgical candidate and believes the claimant does not have any other viable options for pain reduction, other than perhaps weight loss.
The trial commissioner, noting that the MRI’s taken on July 25, 2008 and November 12, 2009 “evidence a profoundly debilitating condition of the claimant’s spine,” Findings, ¶ A, determined that “[b]ased on the medical evidence, the claimant’s physical condition is precarious, at best.” Findings, ¶ H. The trier rejected as not credible Dr. Schweitzer’s opinion that the claimant has a full-duty work capacity and noted that Dr. Alleva, the claimant’s treating physician, had rendered the claimant temporarily totally disabled pending the completion of physical therapy and no evidence attesting to the claimant’s completion of the physical therapy regimen prior to the commencement of the instant proceedings had been adduced. The trier also found that the evidentiary record supports the inference that the claimant performed no physical labor for CRE, remarking that:
[a]s a part owner in CRE, the claimant was, in effect, his own boss. His obligation to report to an office every day, to drive, to come and go from the office, to take breaks, to lay down or stand up, and/or to refuse to engage in any activity at all on any given day, on account of his physical condition, was within his sole discretion. Accordingly, he conducted his daily activities without third-party supervision – an aspect of employment he would be unable to avoid in the competitive labor market.
Findings, ¶ E.
The trial commissioner also determined that “[t]he claimant is currently 56 years of age and has been working sporadically in a managerial or supervisory capacity, in the shelter of a family-owned business, for the past several years.” Id. The trial commissioner found that the dispute in Superior Court among the claimant’s sibling members of CRE relative to the claimant’s alleged mismanagement of CRE funds “constitute[d] unproven allegations only and, contrary to the respondent’s representations, cannot be used to controvert the claimant’s claim regarding lack of work capacity between June 29, 2009 and December 15, 2009 herein.” Findings, ¶ K. As such, the trial commissioner concluded that the claimant was totally disabled between June 29, 2009 and December 15, 2009.
The respondent filed a Motion to Correct which was denied in its entirety, and this appeal followed. On appeal, the respondent contends that the trial commissioner’s decision to award the claimant temporary total disability for the period between June 29, 2009 and December 15, 2009 was arbitrary and capricious. The respondent also argues that the trial commissioner erroneously disregarded the implications of the lawsuit brought against the claimant by his member siblings in CRE. Finally, the respondent claims as error the trial commissioner’s failure to grant its Motion to Correct.
We begin our analysis of this matter with a recitation of the well-settled standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions.
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).
McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).
Bearing in mind these precepts of appellate review, we turn to an examination of the respondent’s various allegations of error relative to the trial commissioner’s award of temporary total disability benefits to the claimant for the period of June 29, 2009 through December 15, 2009. The respondent alleges, inter alia, that the record is devoid of medical evidence supporting a temporary total disability award and it was therefore “arbitrary and capricious for the commissioner to make such a finding.” Appellant’s Brief, p. 7. It is of course axiomatic that the burden of proving eligibility for temporary total disability benefits lies squarely with the claimant. A “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.’”4 D’Amico v. Dept. of Correction, 73 Conn. App. 718, 724 (2002), cert. denied, 262 Conn. 933 (2003). “The plaintiff [bears] the burden of proving an incapacity to work, and ‘total incapacity becomes a matter of continuing proof for the period claimed.’” (Internal quotation marks omitted.. Dengler, supra, at 454, quoting Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42 (1996).
Our review of the evidentiary record indicates that it contains the following items in support of the instant claim. First, the claimant proffered Dr. Alleva’s note of June 29, 2009 stating, “Mr. Frank Chimblo will be unable to return to work until he completes all recommended physical therapy. When finished with physical therapy his back condition will be re-evaluated.” Claimant’s Exhibit A. This note clearly establishes the point of commencement for the claimant’s temporary total claim. Second, the respondent submitted into the record the deposition testimony of Dr. Alleva which is rife with references to the claimant’s physical limitations. For instance, when the doctor was asked if he had any concerns that the claimant’s job duties with CRE might pose a threat to his back condition, Dr. Alleva stated, “[w]ell, any time you have to get out of your house and go into a car, and sit in a car, sit in a chair for extended periods of time, that could be torture for a person with his particular back problems.” Respondent’s Exhibit 3, p. 12.
Dr. Alleva also remarked that “[t]here are certain positions of the back that you want to advocate and foster rather than a fixed position in a chair all day long, or standing all day. There are better positions that you can be in. And if you’re in that work environment, it’s hard to achieve those goals.” Id., at 13. The doctor opined that the claimant should avoid any physical labor, noting that “bending, stooping, lifting would be something he shouldn’t do at all.” Id., at 14. The doctor also stated that he would place restrictions on the claimant’s ability to drive, such as avoiding repetitive stops, repetitively entering and exiting a car, and longdistance drives of more than an hour. Id., at 23.
Dr. Alleva testified that he had begun giving the claimant pain medication as far back as the early 1990’s and the claimant had been on Oxycontin since at least 2002, and possibly even longer than that. Id., at 6,7. He also indicated that breakthrough pain could be a distraction for the claimant even while conducting routine activities but that the doctor was not willing to prescribe extra medicine for the claimant’s breakthrough pain. Id., at 24. With regard to the medical note issued on June 29, 2009, Dr. Alleva testified that although he did not take the claimant out of work due to any “specific” medical concern, id., at 18, the claimant had relayed that “his pain was mostly low back, it was constant and it was daily. So it didn’t seem like it was improving much.” Id., at 23. The doctor stated that it was his impression that the claimant either had been or was going to be evaluated by an orthopedic back specialist and was going to initiate a physical therapy regimen. While the doctor did opine that physical therapy would probably not be curative given the chronic nature of the claimant’s back issues, he did state that it is “always worth trying physical therapy, if it hasn’t been tried, in a person who has chronic back pain.” Id., at 20. The doctor also indicated that weight loss would help to lessen the claimant’s symptoms. Id., at 21.
Dr. Schweitzer, the RME doctor, testified that he had reviewed “volumes” of medical reports spanning a period of approximately thirty years. Respondent’s Exhibit 2, p. 16. The doctor noted that in 2000, Dr. Roda had pronounced the claimant “completely disabled” from gainful employment, id., at 17, but testified that the claimant returned to work during that year. Id., at 19. Dr. Schweitzer indicated that when he met with the claimant, the claimant reported that his “chief complaint is muscle pain and stiffness in the lower back with a driving toothache-type pain that comes and goes.” Id., at 14. The doctor commented that the MRI “findings are substantial, they are significant, they are at multiple levels, they are undeniable ” id., at 35, and the claimant’s “back is really damaged in so many areas, it has been subjected to so many years of overstress that it undergoes the kind of wear and tear changes that yours and mine do but to a lesser extent so the extent of his problem is magnified.” Id., at 61. The doctor also conceded that the claimant’s back is degenerating more quickly than other people’s. Id., at 65.
Dr. Schweitzer opined that while the claimant may have been a surgical candidate in the 1990’s, id., at 44, he did not consider the claimant to be one currently. Id., at 32. He testified that the claimant had not reported particularly high pain levels to the physical therapist, id., at 1112, but also stated that there is no way to determine the claimant’s actual pain levels without taking him off the Oxycontin, which he opined would be contraindicated.5 Id., at 49-50. Finally, as noted previously herein, the doctor remarked that the high dose of Oxycontin taken by the claimant would “kill” a normal person. Id., at 67-68.
Following his examination of the claimant, Dr. Schweitzer concluded the claimant had a full-time work capacity, albeit with restrictions on repetitive bending and significant lifting and the requirement that the claimant be able to change positions “from time-to-time.” Id., at 22-23. However, the doctor also stated that he was unable to answer whether there was an employer “out there that would actually employ [the claimant] eight hours a day, based on his training, education and experience .” Id., at 93.
The claimant also testified in some detail regarding his physical limitations. For instance, he stated that once he began assuming more property management responsibilities for CRE, he always had to make sure he could find the time to rest his back, October 22, 2009 Transcript, p. 7, and that his siblings wanted him to perform such maintenance activities as changing light bulbs, painting walls, and shampooing rugs but that he was physically unable to do so. Id., at 8. The claimant stated, “I can’t do the kind of things that my partners would want me to do to be the property manager and answer phones and be available 24/7. It’s impossible.” Id. The claimant also commented that while he is able to drive, but “[i]t’s like sitting in a chair. Some days you go a half hour and you start getting the driving toothache pain in your back. Some days you can go for hours. Some days it’s more or less.”6 Id., at 21.
However, the claimant denied that he’d “passed the management” of CRE over to Ashworth Company solely because of his back issues, saying that although his back “had a lot to do” with the decision, “the partners have expressed their interest in maximizing the shareholder profitability and didn’t like some of the calls that I had made over the past few years. With my back deteriorating, they had more concern. So it was a combination of things.” Id., at 22-23. Relative to his high level of narcotic usage, the claimant remarked that “I’ve been on narcotic pain medication running through my liver since 1986 24/7. There’s doctors that fall off their chair when I go in and get an examination, they find out I’ve been on all this stuff for this length of time. They want to know how I didn’t explode.” Id., at 11-12.
Susan Ambrosio, the claimant’s sister and a member sibling of CRE, also testified at trial. She partially corroborated the claimant’s testimony, remarking, “I don’t believe to my knowledge [the claimant] did anything physical,” and all that such work was hired out. December 15, 2009 Transcript, p. 39. However, Ambrosio indicated that none of the members of CRE ever asked the claimant to “take on more of the hands on repairs and maintenance of the property at any time”, id., and testified that the management company was hired because of perceived financial issues. Id., at 22. “The reason we have a management company was there was huge amounts of money being spent, not knowing where it was exactly all going and we needed to get a handle on that.” Id.
The trial commissioner, based on the foregoing evidentiary record, concluded that the claimant had proven his eligibility for temporary total disability benefits for the period commencing with Dr. Alleva’s note of June 29, 2009 and continuing until December 15, 2009. The trial commissioner determined that the limited extent of claimant’s activities within the “shelter” of CRE and his ability to perform those activities without daily supervision could not likely be replicated in a competitive labor market. See Findings, ¶ E. It may thus be reasonably inferred that the trial commissioner based her decision in part on the Osterlund doctrine, which provides a factfinder with several additional elements for consideration when assessing whether a claimant is totally disabled. In Osterlund v. State, 135 Conn. 498 (1949), our Supreme Court stated,
[a] finding that an employee is able to work at some gainful occupation within his reasonable capacities is not in all cases conclusive that he is not totally incapacitated. If, though he can do such work, his physical condition due to his injury is such that he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.
The practical effects of this doctrine are such that, “[w]hen a claimant has a theoretical light duty work capacity it is reasonable for a trial commissioner to consider the claimant’s age, education and other factors in order to determine whether the claimant is in fact totally disabled.” Girasuolo v. West Haven, 4782 CRB-3-04-2 (April 13, 2005), citing Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998).
Having reviewed the instant record in its entirety, we therefore find the evidence presented more than adequately supports the trial commissioner’s conclusions regarding the claimant’s eligibility for temporary total disability benefits for the period claimed. Moreover, there is no question that it was clearly within the trial commissioner’s discretion to credit the portions of the opinions of Dr. Alleva and Dr. Schweitzer which support an award of temporary total disability. “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.” (Internal citations omitted.) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).
In addition, the trial commissioner also had the opportunity to hear live testimony from the claimant, and the trial commissioner’s reliance upon this testimony in making her determinations fully complies with the legal maxim that, “[c]redibility must be assessed not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. . . .” (Internal quotation marks omitted.) Burton v. Mottolese, 267 Conn. 1, 40 (2003), quoting Briggs v. McWeeny, 260 Conn. 296, 327 (2002). We therefore decline to overturn the trial commissioner’s award of temporary total disability benefits in this matter. “It is immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).
The respondent contends that the claimant has received and continues to receive substantial remuneration from his familyowned enterprise. However, as this board has previously observed, the proper focus of our inquiry in such cases is not the amount of the remuneration but “whether the income in question reflects a work capacity on the part of the claimant.” Rodrigues v. American National Can, 4043 CRB-5-99-4 (July 26, 2000). Thus, in Tessier v. Kogut Florist and Nurseryman, Inc., 9 Conn. Workers’ Comp. Rev. Op. 276, 1088 CRD-8-90-7 (December 13, 1991), this board remanded a matter in which the trier’s findings appeared inconsistent relative to whether the claimant’s activities on behalf of a nursery in which the claimant was a partner during a period in which the claimant was collecting temporary total disability benefits in fact established that the claimant actually had a work capacity.7
Similarly, in Granoff v. New Haven, 12 Conn. Workers’ Comp. Rev. Op. 166, 1555 CRB-3-92-11 (April 29, 1994), this board affirmed the trier’s denial of a claim for temporary total disability by a school teacher who also operated a real estate agency out of his residence. The evidence showed that “[t]he claimant remained actively engaged in his real estate business during the periods that he was disabled from his teaching duties; he continued to operate the real estate agency and supervise his employees during that time.” Id., at 167. We concluded that “[w]here an injured worker’s business endeavor involves not simply a return on investment but involvement in the day-to-day requirements and details of the business, such work activities are inconsistent with a total incapacity to work.” Id., at 168.
In the matter at bar, the claimed period of total disability commences on June 29, 2009, which closely coincides with the point in time at which the claimant turned over the CRE property management responsibilities to the Ashforth Company. Although the respondent asserts that “[t]he Claimant cannot establish a viable claim for temporary total disability because he is still working,” Appellant’s Brief, p. 5, we find no significant support for this assertion in the record. The claimant testified that as of either July 1, 2009 or July 15, 2009, he was no longer acting as property manager for CRE because Ashforth Company had assumed responsibility for all of the company’s property management functions.8 October 22, 2009 Transcript, pp. 8, 9. The claimant also testified that he was no longer responsible for dealing directly with tenants’ phone calls, stating, “[s]ee, that’s not on my agenda anymore. The Ashworth Company gets to play that game, not me.” Id., at 16. The claimant indicated that he was paid for his management services until June 2009, after which time the only monies he collected from CRE were in the form of profit sharing distribution checks. Id., at 9. This assertion was corroborated by his sister’s testimony at trial.9 December 15, 2009 Transcript, p. 75.
In addition, the record indicates that since the changeover, the claimant’s activities relative to CRE have primarily consisted of stopping by the office in Cos Cob to check the mail and answering machine, October 22, 2009 Transcript, p. 9, fielding the occasional phone call from the Ashforth Company, id., and attending a weekly meeting with his CRE member siblings. Id., at 17. The claimant denied doing any copying or filing, other than occasionally printing and copying an e-mail message. Id., at 19. Although Susan Ambrosio testified that the claimant is “still actively participating in the company” in that he “goes into the office every day. Trying to fill some vacant spaces that we have,” she also stated that she did not know for how many hours per day the claimant was in the office or “what he’s doing when he’s there.” December 15, 2009 Transcript, p. 64.
As such, despite testimony from both the claimant and his sister attesting to some ongoing involvement with CRE on the part of the claimant, it may be reasonably inferred that the trier simply did not consider that the above enumerated activities rose to the level of “actively managing” CRE. Had the claimant lodged a temporary total disability claim for some period in time prior to June 29, 2009, when his role within CRE was arguably more extensive, then the proper analysis for the trial commissioner would have been whether the claimant’s prior additional job duties might have risen to the level of “active management” of the partnership. But the claimant has not filed a claim for a time period prior to June 29, 2009, which renders such an analysis inappropriate on the part of the trier and therefore well beyond the scope of this opinion.
In a similar vein, the respondent has gone to great lengths to adduce evidence proving that no significant change occurred in the claimant’s physical abilities or medication regimen such that he could be considered to have had a work capacity prior to June 29, 2009 and no work capacity after June 29, 2009. The respondent asserts that “[i]t was arbitrary and capricious to commence total disability as of June of 2009 because nothing new had occurred to bring about the disability.”10 Appellant’s Brief, p. 8. The respondent fails to appreciate that the claimant instituted his claim for temporary total disability benefits commencing as of June 29, 2009. Given that we are bound by the axiom that “total incapacity becomes a matter of continuing proof for the period claimed,” the scope of our analysis is therefore defined by this date certain. (Emphasis added; internal quotation marks omitted.. Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440, 454 (2001), quoting Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42 (1996).
As we have previously noted, the weight and credibility to be accorded the evidence is uniquely within the purview of the trial commissioner. Both the opinions of Dr. Alleva and Dr. Schweitzer comment on the claimant’s work capacity prior to June 29, 2009. However, because an entitlement to benefits before June 29, 2009, i.e., when the respondent alleges the claimant was working for CRE, was not at issue, the trial commissioner properly exercised her discretion to accept or reject in full or in part the physician’s opinions regarding the claimant’s work capacity after June 29, 2009. Tartaglino, supra.
In its defense of this claim, the respondent places great weight on the circumstances surrounding the removal of the claimant from his management responsibilities with CRE, and alleges that “[i]t was legal error for the trial commissioner to disregard the lawsuit against the claimant. Merely considering a loss in wages is not legally sufficient to award temporary total disability.” Appellant’s Brief, p. 16. This claim of error fails on several counts. First, we concur completely with the trier’s assessment of the allegations contained in the complaint filed by the claimant’s CRE member siblings against him. See Findings, ¶ K. At best, they constitute hearsay and, at worst, could be considered inflammatory. Second, in light of the conclusion by the trier that the claimant had proven his entitlement to temporary total disability benefits for the period in question, the circumstances relative to the removal of the claimant from his prior position with CRE are, in our estimation, not relevant to the issue of whether the claimant had a work capacity.11 Third, as the preceding discussion of the expert evidence presented and the trier’s twenty-nine findings relative to her review of the medical evidence and expert testimony indicate, the trier clearly did not base her determinations “solely” on a consideration of the claimant’s lost wages.12 This claim of error therefore fails.
The respondent has also claimed as arbitrary and capricious the trier’s decision to deny its Motion to Correct, including a proposed correction calling for the substitution of the exact wording of a medical report for the trier’s paraphrasing of same. Our review of the proposed corrections indicates that the respondent is primarily engaged in an attempt to reiterate the arguments made at trial which ultimately proved unpersuasive. As this board has previously observed, when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002).
Having found no error, this matter is accordingly affirmed.
Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.
1 It should be noted that the trial commissioner incorporated by reference the findings of fact and conclusions set forth in her Finding and Award of January 15, 2009 and January 29, 2010. Also see Chimblo v. Connecticut Light & Power, 5417 CRB-7-09-1 (December 30, 2009). BACK TO TEXT
2 A voluntary agreement was approved acknowledging a May 9, 1979 back injury and awarding the claimant a forty-percent (40%) permanent partial disability of the low back. January 15, 2009 Finding and Award, ¶ 6. BACK TO TEXT
3 The claimant, his brother and his sister became part-owners of the partnership upon the death of their father in 1999. At that time, the partnership also included the claimant’s uncle. BACK TO TEXT
4 § 31-307(a) C.G.S. (Rev. to 1975) states, in pertinent part, “[i]f any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of his injury....” BACK TO TEXT
5 When asked if it was “a good thing” that the claimant had been taking Oxycontin for decades, the doctor answered, “[i]n this case it is because there is no better option for him. He doesn’t have, in my opinion, and I’m not alone on this, he doesn’t have the option of another solution that would decrease his pain, whatever level it might be at, absent medication to a level of zero to three, there is no other options [sic], therefore, in this case taking that medication is a good thing.” Respondent’s Exhibit 2, at 49 50. BACK TO TEXT
6 The claimant testified that his residence was “around the corner” from CRE’s office in Cos Cob and two miles from their Greenwich office. BACK TO TEXT
7 The evidence showed that the claimant made phone calls to the nursery to place orders, picked up orders with the company truck, and entered the nursery premises to deal directly with employees in placing orders and picking up invoices. The trial commissioner “also found that the claimant denied active participation in the business but did water the plants and shrubs.” Tessier v. Kogut Florist and Nurseryman, Inc., 9 Conn. Workers’ Comp. Rev. Op. 276, 278, 1088 CRD-8-90-7 (December 13, 1991). BACK TO TEXT
8 Q: There’s no question that you are no longer the property manager for the LLC and that those responsibilities that were once performed by you are now being performed by the Ashforth Company?
October 22, 2009 Transcript, p. 9. BACK TO TEXT
9 Q: Is Frank getting anything other than a distribution today from Chimblo Real Estate? BACK TO TEXT
A: He should not be.
Q: So any monies he’s received from Chimblo Real Estate after July 1, 2009, should be exclusively in the form of distributions, is that correct?
December 15, 2009 Transcript, p. 75. BACK TO TEXT
10 The respondent contends that the trial commissioner actually found a work capacity because she made the following comment during trial: “Clearly he has a work capacity as some sort of a property manager. Whether he’s with this company or he’s not with this company. He still has a work capacity as a manager of some sort. He just can’t do physical work.” December 15, 2009 Transcript, p. 49. The trial commissioner also remarked, “I’m still struggling here with the fact that to me it doesn’t appear his physical status has changed from before June of last year and now.” October 22, 2009 Transcript, p. 32. We decline to find dispositive conclusory comments made by a trier before all of the evidence has been presented. BACK TO TEXT
11 We note that the trier made repeated inquiries into the relevance of this line of questioning during the course of the trial. Had the claimant been found eligible for temporary partial disability benefits, then we might have accorded this defense greater evidentiary weight. However, although the claimant’s eligibility for temporary partial disability benefits was identified as one of the issues for consideration at the outset of the first formal hearing, October 22, 2009 Transcript, p. 1, the issue was not pursued at trial and the trier made no findings in that regard. This board therefore lacks the authority to launch a speculative inquiry either into the claimant’s eligibility for such benefits or the effect his removal from his former position with CRE might have had on this eligibility. BACK TO TEXT
12 As such, the respondent’s analysis in its brief of the “general business conditions” doctrine, while instructive, is unavailing. BACK TO TEXT