CASE NO. 5615 CRB-6-10-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 3, 2012
TARGET CAPITAL PARTNERS
BROADSPIRE, A CRAWFORD COMPANY
The claimant was represented by John J. D’Elia, Esq., of Kennedy, Johnson, D’Elia & Gillooly, LLC, 555 Long Wharf Drive, 13th Floor, New Haven, CT 06511.
The respondents were represented by Thomas M. McKeon, Esq., Bai, Pollock, Blueweiss & Mulcahey, PC, Two Corporate Drive, Shelton, CT 06484.
This Petition for Review from the December 14, 2010 Finding and Decision of the Commissioner acting for the Fifth District was heard June 24, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding and Decision based on his position that his Motion to Correct, which sought to deny the respondents Form 36, should have been granted. We find that the trial commissioner’s decision herein was based on an assessment of the claimant’s credibility and the persuasiveness of his treating physician’s testimony. The trial commissioner found the respondent’s examiner more persuasive. After examining the record we conclude this was a decision within his prerogative and was a decision consistent with the law. We affirm the Finding and Decision and dismiss this appeal.
The following facts are pertinent to our discussion. The trial commissioner took notice that the claimant had an accepted injury by way of a voluntary agreement approved in 2003. On December 12, 2008 the respondents filed a Form 36 seeking to “terminate temporary total disability benefits and move the Claimant to temporary partial disability status” based on a report by their examiner, Dr. Steven Calderon. The trial commissioner noted the claimant had been treating with Dr. Michael Murphy and Dr. David Kloth. Dr. Murphy performed lumbar surgery in regard to the claimant on December 9, 2003, and January 16, 2007. Dr. Murphy reported that the claimant was temporarily totally disabled.
The claimant’s neighbor, Andre Poirier, took photographs of the claimant in May of 2008. Those pictures were given to Dr. Murphy who wrote a letter in October 2009 stating these pictures of the claimant did not “change my opinion of his current temporary total disability.” Findings, ¶ H. The claimant’s other treater, Dr. Kloth, also opined the claimant was totally disabled in an October 23, 2009 report. The respondents had their expert, Dr. Calderon, examine the claimant on November 25, 2008. Dr. Calderon’s report opined the claimant had a work capacity. When he was subsequently deposed, Dr. Calderon testified that the photographs of the claimant’s activities “certainly adds support that he is capable of physical activity and certainly aren't inconsistent with anything that I've said.” Findings, ¶ N. Mr. Poirier testified at the formal hearing that he observed the claimant cutting his lawn, sheetrocking his bathroom, and doing other renovation work at his residence. Findings, ¶ O. Mr. Poirier also testified that the claimant made three trips to Montreal from Branford in an automobile, a trip that takes about six to seven hours, stopping only twice on each trip. Findings, ¶ P.
The trial commissioner observed the claimant testify at the formal hearing and noted he was sitting comfortably for over an hour without any apparent problems. Findings, ¶ S.
The claimant had testified that he is only able to sit for about 15 minutes at a time. Findings, ¶ R. The claimant also acknowledged he had done a variety of chores around his house since 2007, including mowing the lawn, painting a deck and shingling the house, as well as supervising paving of the driveway. Findings, ¶ Q.
Based on these subordinate facts the trial commissioner found the claimant was able to do work activities around his house. Conclusion, ¶ D. He did not find the claimant’s testimony “fully credible and persuasive as to the issues presented.” Conclusion, ¶ C. The trial commissioner found Dr. Calderon fully credible and persuasive and found Dr. Calderon had opined that the claimant “is capable of physical activity and employment.” Conclusion, ¶ H. The trial commissioner did not find Dr. Kloth or Dr. Murphy fully credible and persuasive. As a result, the Form 36 filed on December 12, 2008 was approved as of December 12, 2008, finding that the claimant is capable of light-duty employment.
Both parties filed Motions to Correct. The respondents filed a Motion to Correct to establish the date of the claimant’s work capacity. These corrections were granted. The claimant sought a large number of corrections which sought to add numerous findings as to the testimony of the claimant and Mr. Poirier; the verbiage of various medical reports, and a conclusion that the Form 36 should be denied or modified. The trial commissioner denied this Motion in its entirety. Therefore, the claimant has pursued this appeal.
The claimant has filed a Motion to Submit Additional Evidence. The additional evidence is in the form of medical records prepared by Dr. Murphy in 2011. The respondent has objected to this Motion stating the evidence herein is not relevant to the issue of whether a Form 36 should have been approved as of 2008. We agree and deny this Motion for the reasons stated in Grant v. Siemens Westinghouse Power Co., 5292 CRB-4-07-11 (October 28, 2008).
The claimant raises a number of issues in his appeal. He argues that the trial commissioner should have found the opinions of Dr. Kloth and Dr. Murphy credible, or in the alternative, he was obligated to offer an explanation as to why he chose not to rely on their opinions. He further argues that the trial commissioner should not have relied on the opinion of Dr. Calderon, in part because his medical report was prepared prior to the filing of the approved Form 36. He also argues that his Motion to Correct should have been granted, in part because the trial commissioner should not have found Mr. Poirier’s testimony probative and persuasive.
Upon review, this constitutes a challenge as to how the trial commissioner weighed the evidence. We generally do not find these arguments persuasive in an appellate forum. As we stated in Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007), we must give deference to such decisions in cases involving § 31-307 C.G.S.
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 Svcs., 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. Department 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).
Our inquiry must focus on whether the trial commissioner was presented with sufficient evidence to conclude that the claimant had a work capacity. We note at the outset that we have reiterated that it is the claimant’s burden to prove that they are totally incapacitated. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007).
In the present case the trial commissioner based his decision on two factors. He did not find the claimant was a fully credible witness and he found the respondents’ expert, Dr. Calderon, to be a credible witness. We generally must defer to the trial commissioner’s assessment of credibility; particularly when the claimant testifies in person before the trial commissioner. “The trial commissioner in the present action specifically found the claimant ‘less than credible.’. This is dispositive of the appeal. We cannot revisit a trial commissioner’s determination of credibility when witnesses present testimony for his consideration. Burton v. Mottolese, 267 Conn. 1, 40 (2003).” Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (Per Curiam).
The claimant had the burden of establishing he was totally disabled. Hernandez, supra. The trial commissioner cited various testimony of the claimant as to his daily household activities which the commissioner found were unpersuasive as to this issue. Findings, ¶ Q. He also noted the demeanor of the claimant as he testified. As we pointed out in Leandres, supra, the claimant’s demeanor at the formal hearing may inform the trier of fact as to whether the claimant’s physical condition objectively would preclude a work capacity. We cannot reevaluate this conclusion by reviewing the cold printed record. Id., see also Burton, supra. “Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . .”
A claimant’s credibility also bears heavily on whether medical testimony reliant on his or her narrative is to be given weight by the trial commissioner. When a trial commissioner does not find the claimant credible, the commissioner is entitled to conclude any medical evidence which relied on the claimant’s statements was also unreliable. See Baker v. Hug Excavating, Inc., 5443 CRB-7-09-3 (March 5, 2010); Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006), and Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008). We may reasonably infer this would provide justification for the trial commissioner discounting the opinions of the claimant’s treating physicians.
The claimant argues that it was legal error for the trial commissioner not to have detailed his specific reasons for discounting the medical opinions of the treating physicians. We note that while the claimant filed a Motion to Correct in this matter, he did not seek a Motion for Articulation. In any event, we do not believe the trial commissioner was obligated as a matter of law to further explain his rationale for weighing the evidence. In many ways this case is similar to Biehn v. Bridgeport, 5232 CRB-4-07-6 (September 11, 2008) where the claimant sought a detailed explanation as to why her claim was denied. As we held in Biehn, the decision’s rationale was clear enough that an articulation was not necessary since the decision was unambiguous. In the present matter the trial commissioner clearly stated he did not find the claimant fully credible and did not find his treating physicians persuasive. We find that this sufficiently complies with Administrative Regulation § 31-301-3 where a commissioner’s findings must detail the facts that he or she found and the conclusions based on those facts he or she reached. “Thus, by the express terms of § 31-301-3 of the regulations, the scope of the commissioner’s finding and award is limited to the ‘ultimate, relevant and material facts essential to the case.” Cable v. Bic Corp., 270 Conn. 433, 440 (2004), quoting Luciana v. New Canaan Cemetery Assn., 3644 CRB-7-97-7 (August 12, 1998). Biehn, supra. The trial commissioner’s findings are therefore consistent with the legal standard promulgated by the Supreme Court in Cable, supra, and must be sustained on appeal.
The claimant raises two other points. He argues that the Motion to Correct should have been granted as it included what he regarded as material and undisputed evidence which would have supported a conclusion of total disability. We believe that the trial commissioner could have considered this evidence, but ultimately found the evidence was neither probative nor persuasive. This decision was consistent with precedent in Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008) and Brockenberry, supra., where this tribunal held as follows:
When a party files a Motion to Correct this is an effort to bring factual evidence to the trial commissioner’s attention in an effort to obtain a Finding that is consistent with such facts. When a trial commissioner denies such a motion, we may properly infer that the commissioner did not find the evidence submitted probative or credible. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). On appeal, our inquiry is limited to ascertaining if this decision was arbitrary or capricious. Id. The leading case on this point is Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003).
We also note that virtually all of the “undisputed facts” cited by the respondent in their Motion to Correct were derived from testimony, which the trier was not required to believe even if those statements were uncontradicted or otherwise corroborated. Duddy, supra. Pallotto v. Blakeslee Press, Inc., 3651 CRB-3-97-7 (July 17, 1998). The trier’s denial of those corrections implies that he was not swayed by this testimony, and we cannot invade his sphere of authority by reappraising the evidence and drawing a contrary inference on appeal. Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (Jan. 20, 2000).
We do not find the trial commissioner’s denial of the Motion to Correct was arbitrary or capricious pursuant to the standards delineated in In re Shaquanna M., 61 Conn. App. 592 (2001). We must defer to his decisions. We also find no error based on the claimant’s other assertion; that the Form 36 was somehow deficient because the accompanying medical report from Dr. Calderon was issued a few days prior to the date of the Form 36. The claimant offers no precedent wherein this constituted error on the part of the trial commissioner. The trial commissioner had the opportunity to consider evidence that the claimant never had a work capacity during this relevant time period, or that his work capacity had deteriorated materially between the date of the examination and the date the Form 36 was granted. Our review of Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 38-42 (1996) finds the manner in which this matter was resolved was consistent with the law.
The claimant also points to the lapse of time between the 2008 examination by Dr. Calderon and the formal hearing as being problematic. Since there was very little lapse of time between this examination and the effective date of the Form 36 we find no error. The claimant presented subsequent medical evidence that would have supported a conclusion finding that the claimant lacked a work capacity at a later date. However, we note the trial commissioner found it unpersuasive. The claimant also argues that the commissioner should not have relied on Mr. Poirier’s testimony to find the medical evidence unpersuasive, but in light of the extensive cross-examination claimant’s counsel performed at the formal hearing on this witness (December 21, 2009 Transcript, pp. 42-64) we find no due process concerns herein, Roberto v. Partyka Chevrolet, Inc., 5542 CRB-3-10-3 (February 8, 2011). We also note that the trial commissioner’s conclusions do not reference Mr. Poirier’s testimony and we are hard pressed to find error from a conclusion the trial commissioner did not include in his or her decision. Id.
This case is very similar to a prior case where a claimant argued he continued to be totally disabled from a compensable injury, but the trial commissioner concluded that based on the respondent’s medical examination and testimony as to the claimant’s activity level that the claimant did in fact have a work capacity. Smith v. Federal Express Corporation, 5405 CRB-7-08-12 (December 1, 2009). We cannot distinguish this case either legally or factually from Smith. We are compelled to reach the same result.
The Finding and Decision is affirmed. The appeal is dismissed.
Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.