State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Butler v. Frito Lay

CASE NO. 5620 CRB-2-11-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 3, 2012

KENNETH BUTLER

CLAIMANT-APPELLANT

v.

FRITO LAY

EMPLOYER

and

CNA INSURANCE COMPANIES

and

SEDGWICK CMS, INC.

THIRD PARTY ADMINISTRATORS

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Carolyn Kelly, Esq., Suisman, Shapiro, Wool, Brennan, Gray & Greenberg, P.C., 2 Union Plaza, Suite 200, P.O. Box 1591, New London, CT 06320.

The respondents Frito Lay and its Third Party Administrator CNA Insurance Companies were represented by Stacey Francoline, Esq., Regnier, Taylor, Curran & Eddy, 100 Peal Street, 10th Floor, Hartford, CT 06103.

The respondents Frito Lay and its Third Party Administrator Sedgwick CMS, Inc., were represented by Michael Vocalina, Esq., Cotter, Cotter & Mullins, LLC, 6515 Main Street, Second Floor, Suite 10, Trumbull, CT 06611.

This Petition for Review1 from the December 17, 2010 Finding and Award of the Commissioner acting for the Second District was heard September 30, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding and Award which he believes inadequately compensated him for his injuries. He argues that the evidence did not support granting a Form 36 ending his temporary total disability benefits. He also challenges the award on procedural grounds, arguing that the manner in which the Commission considers disputes over a Form 36 denied him due process. We believe the trial commissioner in this matter made a thorough review of the evidence prior to reaching his decision and cited evidence on the record supportive of his conclusions. We also find the trial commissioner rendered a decision consistent with precedent applying Osterlund v. State, 135 Conn. 498 (1949). Finally, we find the case was procedurally indistinguishable from our precedent in prior cases dealing with Form 36’s such as Stryczek v. State/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 1765 CRB-2-93-6 (May 4, 1995). Therefore, we affirm the Finding and Award and dismiss this appeal.

The trial commissioner reached 107 factual findings at the conclusion of the formal hearing, and these findings clearly depict the claimant as having a long and unfortunate series of orthopedic injuries commencing in the mid 1980s. The evidence indicated the claimant first injured his right knee while working in Pennsylvania about 25 years ago and he first injured his left knee in the mid 1990s. The claimant testified his first left knee injury occurred while he was working at Brooks Distribution Center in 1998, but the trial commissioner noted one medical record suggested the claimant had injured the same knee about three years earlier by slipping on ice. Following the claimant’s November 4, 1998 injury at Brooks Distribution Center he was diagnosed with a “horizontal meniscal tear involving the posterior horn of the medial meniscus.” The claimant’s treater at the time, Dr. Scott Green, performed arthroscopic resection of a left medial meniscus tear and “hypertrophic media plica” on January 29, 1999. On March 16, 2000 the claimant returned to Dr. Green for a rating and Dr. Green opined that he had a two-percent loss of use of the right leg. The workers’ compensation claim arising out of this 1998 injury was settled by full and final stipulation in May of 2000. During this period, the claimant changed jobs from Brooks Distribution Center to Frito Lay. The claimant’s job as a diesel mechanic at Frito Lay included lifting tires, changing clutches, working on engines, and the job involved much bending of the claimant’s knees.

The claimant was working at Frito Lay on September 23, 2001 when he got his foot stuck in a tank and sustained another injury to his left knee. He treated with Dr. William Richeimer and on September 27, 2001 Dr. Richeimer diagnosed a left medial meniscus tear. This 2001 left knee injury was accepted as compensable and a voluntary agreement was issued by Continental Casualty/RskCo (CNA), the third-party administrator for Frito’s workers’ compensation claims at that time. The agreement was approved on June 20, 2002. The description of the injury on the agreement is “meniscus tear” of the left knee. On October 19, 2001, Dr. Richeimer performed arthroscopic surgery to the left knee. Specifically, he performed a partial left medial meniscectomy and debridement of the torn left anterior cruciate ligament. Dr. Richeimer removed all of the torn tissue on the meniscus at that time, and he saw no obvious signs of osteoarthritis during the procedure. Following the surgery Dr. Richeimer cleared the claimant for light-duty work as of November 26, 2001, and cleared him to return to his regular work as of December 29, 2001. The claimant did return to work at Frito Lay and reached maximum medical improvement on October 7, 2002. Dr. Richeimer opined that he had a 9 percent permanent partial disability of the left knee as a result of the September 23, 2001 work injury, and released him from care.

In 2003 the claimant injured his right knee while working at Frito Lay. The injury occurred on November 15 of that year when the claimant slipped on some grease. Dr. Richeimer saw the claimant on December 3, 2003 and noted that since the last operation on the right knee in 1996, that knee had been well. However, he noted the new history of having slipped in grease and the claimant’s history that since then he had been limping and had complaints of “snapping” in the right knee. At that time the doctor also noted a history of the clamant having “fallen a couple of times since the problem occurred.” Findings, ¶ 20. Dr. Richeimer reviewed an MRI of the right knee that reportedly showed tricompartment degenerative arthritis with thinning of the cartilage in the trochlear groove. Arthroscopic surgery was performed on the right knee by Dr. Richeimer on January 7, 2004. This was a partial lateral meniscectomy and debridement and shrinkage of the torn ACL. The respondents accepted compensability of this injury and a voluntary agreement executed by Frito Lay’s claim administrator at the time, Sedgwick Claims Management Service, was approved on July 29, 2004. The claimant continued to have problems with the right knee, complaining of a sense of instability. In February 2004 Dr. Richeimer noting the history of prior reconstructive surgery and degeneration in the knee discussed options with the claimant and it was agreed he would have a total right knee arthroplasty (“TKA” or “total knee replacement”). This procedure was performed by Dr. Richeimer on April 20, 2004. The claimant continued to experience “popping” and instability in the right knee and on November 2, 2004 the claimant underwent a surgical revision of the knee replacement, performed by Dr. Richeimer at Backus Hospital.

Following that procedure the claimant continued to complain of knee instability and was using two crutches to walk outside the house. Dr. Richeimer therefore asked his associate, William Balcom, M.D., to examine the claimant, which occurred on March 25, 2005. His diagnosis regarding the right knee at that time was “Pain right knee with functional instability.” Findings, ¶ 27. Dr. Balcom felt the claimant had chronic muscular weakness of the thigh musculature and general achiness and scarring from having had multiple operations on the right knee. The claimant continued to see Dr. Richeimer, who prescribed ongoing physical therapy. Though the claimant was still not satisfied with his knee, thinking there was too much movement in it, he did feel the physical therapy was improving his condition. The claimant stopped his physical therapy later in 2005. On August 25, 2005 the claimant was examined by Dr. Michael Joyce, an orthopedic surgeon retained by the respondents. Dr. Joyce’s records note that the claimant was complaining that his right knee was unstable and weak and that he was not able to perform to the level that would allow him to return to his work as a diesel mechanic. “He uses a cane to ambulate. He feels difficulty with standing in precarious positions, balancing, going up and down stairs.” Findings, ¶ 30. Dr. Joyce advised the claimant that exercise would likely get him enough improvement to return to work as a diesel mechanic, but he should never expect to be 100 percent.

On October 31, 2005 the claimant returned to Dr. Richeimer and said his right knee had given out while he was on the stairs at his home, and he had injured his left knee at that time. The claimant continued physical therapy which continued until August 14, 2006. He also was examined by another physician retained by the respondents, Dr. Michael H. Ellsworth, in February 2006 who opined the claimant’s treatment was reasonable, the claimant was unable to work and he had not reached maximum medical improvement. The trial commissioner noted no further complaints regarding the left knee from January 4, 2006 through October 25, 2006 and the claimant started limiting his use of the cane to long distances. On October 25, 2006 the claimant returned to Dr. Richeimer complaining of increased problems with the right knee. “He notes giving away of the knee and increased pain for the last week. No new history of injury.” Findings, ¶ 49. At that point Dr. Richeimer recommended a consultation with a knee replacement specialist in Hartford, Dr. Courtland Lewis, specifically for the purpose of seeing if the hardware should again be replaced, perhaps with another model.

Dr. Lewis examined the claimant on January 25, 2007 and related no complaints as to the left knee, but the claimant said his right knee was giving out and the claimant said he had fallen twice. Dr. Lewis did not relate any unexpected abnormalities in the claimant’s knee, and recommended against another replacement surgery. Instead, he encouraged the claimant to work on strengthening his quadriceps.

On March 12, 2007 the claimant returned to Dr. Richeimer complaining that he had fallen several times due to instability in the right knee. At that visit the claimant related to increased pain with the left knee. Suspecting a tear of the left medial meniscus, Dr. Richeimer ordered an MRI of the left knee. The respondents did not authorize an MRI, and instead filed a Form 43 contesting compensability of the left knee injury. The claimant continued to treat in regard to his right knee, which included more office visits with Dr. Richeimer, a white blood count test for possible infection, and an “air contrast arthrogram with examination under fluoroscopic anesthesia” performed by Dr. Lewis on October 10, 2007 at St. Francis Hospital in Hartford. Findings, ¶ 57. Based on that last procedure, Dr. Lewis said he could find no clear reason for the claimant’s pain and, therefore, there was no rationale for “any further major surgical interventions at this time.” Id.

On January 8, 2008 the claimant was sent for a respondent’s medical examination with Dr. Peter Jokl, a knee specialist at Yale. Dr. Jokl noted complaints of the right knee buckling and incapacitating right knee pain. He said the claimant was using a cane and had a “markedly antalgic gait,” which appeared to be protective of the right lower extremity. Findings, ¶ 58. He also noted complaints of increasing pain in the left knee. Dr. Jokl did not opine as to the left knee due to a lack of relevant medical records, but as to the right knee he opined that there was no instability and the claimant was at maximum medical improvement with a 50 percent permanent partial disability rating of the right lower extremity. Dr. Jokl opined the claimant had a sedentary work capacity with no bending or lifting. On February 18, 2008 Dr. Richeimer evaluated the claimant for a permanent partial disability relative to the right knee. He opined that the claimant had a 75 percent impairment of the right leg. Dr. Richeimer has continued to maintain that the claimant is totally disabled.

On March 31, 2008 the MRI of the left knee was performed on the claimant. The radiologist, Dr. Ajay I. Dalal, observed post-surgical changes of the posterior horn of the medial meniscus with a “small focal tear through the remnant of the posterior horn.” He also noted “buckling of the mid-substance of the ACL consistent with a partially torn ACL.” Findings, ¶ 62. No mention was made by the radiologist of any arthritis or degenerative findings. Subsequent to this test, Dr. Richeimer examined the claimant with regard to his left knee and after reviewing the images, agreed with the radiologist that the claimant had a tear of the medial meniscus, in addition to a partial tear of the ACL, of which he was already aware of from the prior surgery. Dr. Richeimer recommended arthroscopic surgery to the left knee and attributed causation to falls the claimant had suffered due to instability in his right knee. The recommended surgery to the left knee was contested by the respondents and the claimant was examined again by Dr. Jokl to evaluate his left knee. Dr. Jokl stated: “It is my opinion that Mr. Butler’s problem in his left knee is advanced osteoarthritis in his left knee. He does have a small medial meniscal tear, which I do not think is a primary cause of his substantial subjective symptoms of pain in his left knee. Specifically, it is my opinion that the prior right knee injury is not a substantial factor in Mr. Butler’s present left knee condition.” Findings, ¶ 69. In his August 13, 2008 report Dr. Jokl opined that the claimant had a 40 percent impairment of the left leg due to the knee, all of which he felt was attributable to the time prior to November 13, 2003. Dr. Jokl noted that although a knee replacement might be the logical surgical treatment, but warned of the unsatisfactory result obtained when the right knee was replaced.

On April 7, 2008 Sedgwick filed a Form 36 Notice of Intention to Reduce or Discontinue Payments. The respondents sought to have the claimant determined to be at maximum medical improvement and taken off temporary disability status in favor of permanent partial disability benefits under C.G.S. Section 31-308(b). Commissioner Donald Doyle approved this form without prejudice at an informal hearing held October 20, 2009, effective May 1, 2009. The claimant contends that he is not at maximum medical improvement for the left knee and challenges the claim that he has a work capacity. CNA insurance argues the left knee is the responsibility of Sedgwick, associating the current condition with the claimant’s right knee ailments. Sedgwick disputes this theory and states any responsibility is CNA’s as the knee has degenerated after the 2001 injury.

Commissioner Doyle directed Kevin P. Shea, M.D., to perform a Commissioner’s Medical Examination on January 20, 2009. Dr. Shea opined the claimant’s left ACL tear and medial meniscus tear were the result of a slow progression of osteoarthritis from the 2001 injury. He recommended against arthroscopic surgery because he felt the complaints were from a degenerative condition, not a traumatic tear, and he thought an arthroscopic debridement might aggravate the situation. While Dr. Shea believed the claimant’s level of complaints were out of proportion with the findings he recommended responsive action in the form of x-rays and an injection of corticosteriods and local anesthesia to “determine that the intraarticular space of the knee is the cause of pain.” Findings, ¶ 75. If this modality was ineffective in reducing the claimant’s pain, Dr. Shea recommended against surgery. If the modality was effective Dr. Shea would recommend conservative treatment and a total knee replacement might be considered at some point in the future.

Dr. Richeimer did perform the recommended x-rays on June 10, 2009, but did not interpret the films as supporting the notion of any significant degeneration of the joint and did not agree with Dr. Shea that injections were beneficial; reiterating his opinion that the claimant needed arthroscopic surgery to repair the torn meniscus. Dr. Shea reviewed the x-rays and reached a different conclusion; reiterating his recommendation that the claimant receive injections. In a supplemental report Dr. Shea stated the claimant “clearly has a sedentary work capacity. At this time he will not be able to do any postural activities or ascend or descend stairs.” Findings, ¶ 79.

The trial commissioner further discussed three relevant issues to the ultimate decision. He noted the parties disputed the claimant’s work capacity. The claimant testified that both knees are getting progressively worse. He claims to have continued swelling in both knees, along with “popping” and soreness, and takes Vicodin every four-to-six hours for pain. He says the pain interferes with his sleep. He says he sits down in the shower for fear of falling. He testified that he does not drive because of the pain and the medications he takes. He has testified that the right knee still gives out and that he has to wear a brace because of this. The claimant has not returned to work since the 2003 injury and said that as he cannot drive and has been incapacitated by Dr. Richeimer he has not been looking for work. Dr. Richeimer cites the continued instability of the right knee, the claimant’s ongoing need to use pain medications, and the fact that the claimant has been using crutches to get around as grounds for determining the claimant lacks a work capacity. Dr. Jokl and Dr. Shea on the other hand have both opined the claimant has a sedentary work capacity.

The trial commissioner also evaluated what he believed was the threshold issue as to which date of injury, if any, was responsible for the claimant’s current problems with the left leg: the occurrence or non-occurrence of the claimant’s alleged falls between 2004 and 2007. The commissioner found the claimant’s history on this point “was a bit hard to follow” and “not entirely reliable.” Findings, ¶ 94. The commissioner considered the claimant’s narrative to physicians of “three incidents worthy of note: one in 2004, one in the autumn of 2005, and one in January of 2007.” Id. Finally, the trial commissioner evaluated the three separate MRI’s performed on the claimant’s left knee since 1998. He noted in particular Dr. Jokl’s opinion that the 2008 MRI did not reveal “any signs of a new unstable medial meniscus tear.” Findings, ¶ 107.

Based on these factual findings the trial commissioner concluded the claimant did fall in 2005 and 2007 as a result of his right leg’s weakness and the leg giving way. However, the trial commissioner found the claimant’s testimony that following the January 2007 incident he became so symptomatic that he was unable to walk to be unsupported by the contemporaneous medical records and not reliable. The trial commissioner found no substantial disagreement among the various physicians as the claimant’s left knee impact on the claimant’s work capacity; as all physicians opined to a sedentary work capacity as a result of this condition. The trial commissioner evaluated the stability of the claimant’s reconstructed right knee “and while the artificial knee has not lived up to claimant’s expectations, and while weakness in the claimant’s right knee musculature sometimes leads to buckling which has resulted in him wearing a brace, I find no evidence of actual instability of the hardware.” Conclusions, ¶ L. As the trial commissioner failed to find objective evidence of “true instability” of the right knee he found the opinions of Dr. Shea and Dr. Jokl on the question of work capacity to be more persuasive than those of Dr. Richeimer. Conclusions, ¶ N. The claimant has a sedentary work capacity with regard to his right knee. The trial commissioner further found “insufficient evidence to warrant a finding the claimant’s physical capacities – though admittedly impaired – are so limited as to effectively destroy his capacity to earn wages in the employment market.” Conclusions, ¶ O. The commissioner also concluded the claimant’s condition had not materially changed since the filing of the Form 36, and thus the trial commissioner determined the proper date for the claimant’s transfer to permanent partial disability is April 7, 2008, the date of the filing of the Form 36. Conclusions, ¶¶ P-Q.

The commissioner further concluded the focal tear of the remnants of the claimant’s left medial meniscus is the result of a progressive deterioration of the meniscus following extensive damage to the meniscus as a result of the injuries and surgery to the left knee that occurred prior to November of 2003, including the September 23, 2001 work injury and the surgery by Dr. Richeimer in 2001, in which there was removal of a significant portion of the meniscus. The commissioner found credible the opinion of Dr. Shea that the current need for treatment to the left knee is half due to the 2001 injury (Frito/CNA) and half due to the 1998 injury (Brooks). As the commissioner found the arthroscopic surgery proposed by Dr. Richeimer limited to repair of the tear of the remaining portion of the posterior horn of the medial meniscus, he determined the proposed arthroscopic procedure, while unlikely to relieve all of the claimant’s left knee complaints, was a reasonable and necessary procedure pursuant to § 31-294d C.G.S.

The claimant filed a Motion to Correct. The trial commissioner granted two of the four proposed corrections, but denied the corrections sought that would find the claimant continued to be totally disabled and deny the respondent’s Form 36. The claimant has pursued this appeal. He argues on two fronts. First, he argues the evidence overwhelmingly was weighed against finding that he had a work capacity and the trial commissioner failed to sufficiently account for the impact both knees had in limiting his ability to work. He also argues that procedurally the Form 36 process is flawed and he was denied due process. Indeed, the claimant has raised an averment in his brief the process is unconstitutional. Claimant’s Brief, pp. 15-24. It is settled law this tribunal lacks the legal jurisdiction to rule on the constitutionality of a state statute. Giaimo v. New Haven, 257 Conn. 481, 490 (2001). Accordingly, we will decline to address the constitutional issues raised by the claimant as to the operation of § 31-296(b) C.G.S.

We have reviewed the procedural issues in this case consistent with our prior precedent regarding the consideration of a Form 36. The statute, § 31-296(b) C.G.S., requires the respondent to notify the claimant prior to reducing and terminating benefits and provides the claimant an opportunity to challenge this decision.2 This occurs first by demanding an informal hearing before a trial commissioner and then, should that hearing fail to resolve the dispute, an opportunity to contest the issue before a formal hearing.

We find this case followed this scenario. We note that in Stryczek v. State/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 1765 CRB-2-93-6 (May 4, 1995) we set forth that an informal hearing should be held as soon as practicable after a claimant objects to the filing of a Form 36. In the present case, Commissioner Doyle sought a Commissioner’s Medical Examination due to the complexity of the issues presented. The claimant then disputed the decision at the informal hearing and the present hearing was held. The precedent herein demonstrates that at a formal hearing a de novo hearing is held, and the initial decision at the informal hearing is subject to being potentially overturned, and indeed have been overturned in the past. Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (November 1, 2001), aff’d, 77 Conn. App. 319 (2003). We also note that the Appellate Court has ruled any procedural deficiencies at an informal hearing on a Form 36 are cured by virtue of holding a subsequent formal hearing. See Testone v. C.R. Gibson Co., 5045 CRB-5-06-1 (May 30, 2007), aff’d, 114 Conn. 210 (2009), cert. denied, 292 Conn. 914 (2009) and Krol v. A.V. Tuchy, Inc., 4613 CRB-4-03-1 (January 29, 2004), aff’d, 90 Conn. App. 346 (2005). In light of this clear appellate precedent over recent years we do not find case law supports the claimant’s argument that he was denied due process before the Commission in determining whether his total disability benefits should have been discontinued.3

While we are satisfied this case followed the appropriate path procedurally delineated in our precedent, we must still ascertain if the trial commissioner’s decision on the Form 36 was consistent with the legal standards established for granting such relief. The trial commissioner determined that the evidence supported a date of maximum medical improvement of April 7, 2008. The claimant has challenged this determination. Upon review of the medical evidence and the commissioner’s rationale in the Finding we believe this date should be upheld; but we acknowledge the claimant has raised a very legitimate issue worthy of discussion.

It is our precedent that “in cases where a required Form 36 has been granted (i.e., where a claimant has unsuccessfully alleged continuing incapacity), benefits should be halted or reduced effective on its filing date, unless extenuating circumstances dictate that a later date is more appropriate. Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (February 5, 1997)” Christman v. State/Dept. of Correction, 4134 CRB-1-99-10 (October 16, 2000). The issue the claimant raises is the equity of reaching this decision when the trial commissioner relies on medical evidence which was not in existence as of the date the Form 36 was filed. The claimant believes this amounts to “backdating” the Form 36 as in his view, the initial documentation would not justify granting the Form 36 when it was filed.

Our precedent clearly allows a trial commissioner to rely on evidence developed after the date in which the Form 36 is filed. See the Appellate Court decision in Brinson, supra, at 327-328, where the use of evidence at a formal hearing unavailable at the time of the informal hearing was found appropriate.4 Our concern herein is we believe it is important that Brinson not be construed for the proposition that a respondent is excused from presenting prima facia medical documentation at the time the Form 36 is filed. In addition, we are concerned that a trial commissioner may inadvertedly rule on a Form 36 based on a claimant’s physical condition at a point much later than the filing date of the Form 36, at such time the claimant’s condition could have greatly improved.

In order for the general rule in Torres to be applied we believe the initial documentation to the Form 36 must be adequate. We also believe that before approving a Form 36 the trial commissioner must make an affirmative finding that the claimant’s medical condition at the time the Form 36 was filed did not constitute a total incapacity from work. We believe this standard was met in this case. The Form 36 included a medical report attached from Dr. Peter Jokl pursuant to a January 9, 2008 office visit in which Dr. Jokl opined the claimant had a sedentary work capacity. In Conclusions, ¶ P, the trial commissioner clearly determined that there had been no material change in the claimant’s condition subsequent to the filing of the Form 36.

Based on the evidence presented at the formal hearing, I find no correlation between the effective date of the Commissioner’s approval of the Form 36 (May 1, 2009), and the medical records. Specifically, I find no significant change in the condition of the claimant’s right knee after both Dr. Jokl and Dr. Richeimer rated him with a permanent partial disability in early 2008.

The trial commissioner further determined that he found the opinions of Dr. Jokl and Dr. Shea on the issue of work capacity more credible than that of Dr. Richeimer. Conclusions, ¶ N. In reviewing this conclusion we cannot usurp the role of the trial commissioner, who has the “function to assess the weight and credibility of medical reports and testimony. . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999). Our holding in Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006) stands for the proposition we must defer to the trial commissioner when he or she must choose between differing medical opinions. As we pointed out in Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009), ‘“[w]e have consistently held it is the claimant’s burden to establish total disability and entitlement to benefits under our statute.’ Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007).” The claimant in Damon argued her treating physician should have been found more persuasive than the respondent’s expert witness and the commissioner’s examiner. We determined the trial commissioner could appropriately rely on those opinions to grant the Form 36 filed by the respondents. Id.

The claimant also argues that the trial commissioner failed to consider the impact of both injured knees in determining the claimant had a work capacity as of April 7, 2008. We disagree. The trial commissioner concluded that unless the left knee was related to the 2003 injury the proper date of permanent partial incapacity was the date of the Form 36. Conclusions, ¶ Q. The commissioner did a detailed analysis of the medical reports on the left knee. Conclusions, ¶¶ R-CC. The trial commissioner therefore concluded the claimant’s left knee condition was the result of progressive deterioration caused by injuries predating 2003. Conclusions, ¶ DD. The trial commissioner is the arbiter of what medical evidence he or she finds reliable and persuasive O’Reilly, supra. The Finding and Award indicate the trial commissioner did fully consider the impact of injuries on both knees and reached a reasoned conclusion that the left knee condition was related to prior injuries sustained by the claimant. Moreover, the trial commissioner found that expert testimony had opined the claimant had a sedentary work capacity as a result of his left knee injuries. Conclusions, ¶ K. We therefore are not persuaded by the claimant’s argument as he essentially is disputing the trial commissioner’s ultimate conclusions, not whether they are supported by subordinate facts.5

Finally, we turn to the claimant’s argument that the trial commissioner failed to properly apply the standards delineated in Osterlund v. State, 135 Conn. 498 (1949) to determine total disability. The claimant argues there was error both in the original Finding and in the denial of the claimant’s Motion to Correct in that the trial commissioner failed to make a decision based on vocational factors. Claimant’s Brief, pp. 10-12. We previously have explained that a decision on whether a claimant has a work capacity is based on a “totality of the factors” test. See Romanchuk v. Griffin Health Services, 5515 CRB-4-09-12 (October 20, 2010).

The sum total of our recent decisions applying the Osterlund precedent has been that our trial commissioners may consider the “totality of the factors” in ascertaining whether at the time of the formal hearing the claimant has proven he is entitled to temporary total disability benefits. It is apparent that various members of the bar would desire a “bright line” rule demarcating whether a claimant was entitled to this relief. This is unsupported by the over 60 years of precedent applying Osterlund. There is no hard and fast rule requiring the presentation of vocational testimony in a claim for § 31-307 C.G.S. benefits and we decline to impose such a rule by adjudicatory fiat.

Id.

In the present case, the trial commissioner failed to consider vocational evidence because the parties did not present any vocational evidence, and relied totally on the medical evidence in the record. The claimant also did not present any evidence of an unsuccessful job search, and relied on the opinion of his treating physician determining his was disabled from work. As we pointed out in McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007) a trial commissioner can only reach a determination as to whether a claimant is totally disabled based on the record the parties present.

Whether or not a claimant’s skills constitute marketable labor is a factual decision. Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002). The burden remains on the claimant to demonstrate total incapacity, and a claimant who fails to show efforts to find work is, to some extent, taking a risk. Such a claimant cannot presume that the trier of fact will rely on other considerations such as educational background, training, age, and physical/medical restrictions to declare her totally incapacitated, even if there is evidence in the record that could support incapacity if taken in the light most favorable to the claimant. A commissioner need not assume that a job search would be futile for a claimant with some identifiable job skills. See Gombas, supra. The claimant here offered mainly anecdotal proof that her skills were unmarketable, relying heavily on her personal belief that no one would want to hire her based on her age and her physical condition. See June 14, 2005 Transcript, p. 49. A belief does not constitute undisputed material evidence, and the trial commissioner was not required to incorporate it into his findings. For these reasons, we uphold the trier’s conclusion that the benefits previously paid to the claimant were proper.

Id.

The claimant in this case relied on his treating physician’s opinions and did testify at the formal hearing to having limited education, a history of manual labor, and having physical limitations. May 6, 2010 Transcript, pp. 34-46. The trial commissioner cited the opinions of two expert witnesses he found credible and persuasive that notwithstanding this testimony the claimant had a sedentary work capacity. See Conclusions, ¶¶ K and N. Therefore, we find this case very similar to another case where the claimant asserted error when a trial commissioner rejected an Osterlund claim, Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007). In Leandres the claimant also asserted his work capacity was effectively nonexistent, but the trial commissioner credited expert testimony that the claimant had a sedentary work capacity. The trial commissioner in this case reached a similar decision and we must defer to his judgment.

We find the trial commissioner’s Finding and Award was supported by probative evidence and consistent with the law.6 We affirm the decision and dismiss the claimant’s appeal.

Commissioners Scott A. Barton and Christine L. Engel concur in this opinion

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

2 The text of this statute reads as follows:

(b) Before discontinuing or reducing payment on account of total or partial incapacity under any such agreement, the employer or the employer’s insurer, if it is claimed by or on behalf of the injured employee that such employee’s incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments. Such notice shall specify the reason for the proposed discontinuance or reduction and the date such proposed discontinuance or reduction will commence. No discontinuance or reduction shall become effective unless specifically approved in writing by the commissioner. The employee may request a hearing on any such proposed discontinuance or reduction not later than fifteen days after receipt of such notice. Any such request for a hearing shall be given priority over requests for hearings on other matters. The commissioner shall not approve any such discontinuance or reduction prior to the expiration of the period for requesting a hearing or the completion of such hearing, whichever is later. In any case where the commissioner finds that an employer has discontinued or reduced any payments made in accordance with this section without the approval of the commissioner, such employer shall be required to pay to the employee the total amount of all payments so discontinued or the total amount by which such payments were reduced, as the case may be, and shall be required to pay interest to the employee, at a rate of one and one-quarter per cent per month or portion of a month, on any payments so discontinued or on the total amount by which such payments were reduced, as the case may be, plus reasonable attorney’s fees incurred by the employee in relation to such discontinuance or reduction. BACK TO TEXT

3 The claimant appears to base his procedural argument on the case of Anguish v. TLM, Inc., 14 Conn. Workers’ Comp. Rev. Op. 195, 2286 CRB-7-95-1 (July 13, 1995), appeal dismissed for lack of final judgment, A.C. 15034 (October 26, 1995), cert. denied, 235 Conn. 934 (1995) which he asserts “has been considered unfair by both claimants and employers.” The evident proof for this opinion was an unreported dissenting opinion (see 235 Conn. 934 (1995)) by a now retired Supreme Court justice who would have granted certiorari to consider this issue. Claimant’s Brief, pp. 21-23. We decline to place any weight on such statements as reflective of what the present attitude of the Appellate Court and the Supreme Court are regarding this issue. BACK TO TEXT

4 We note that since it is the practice to seek a Commissioner’s examination to resolve disputes as to medical evidence, it would be logistically impossible to have conducted such an examination prior to the filing date of the Form 36 in this scenario. BACK TO TEXT

5 We note that prior to the conclusion of the Formal Hearing the depositions of Dr. Richeimer, Dr. Shea and Dr. Jokl were all held. See Respondents Exhibit 1, Exhibit 3 and Exhibit 6. Counsel for the claimant attended the depositions of Dr. Richeimer and Dr. Shea. To the extent the parties wanted to clarify the medical opinions of these witnesses, they had the opportunity to do so prior to the trial commissioner’s ruling on this matter, which is in accordance with the procedural due process guidelines delineated in Ghazal v. Cumberland Farms, 5397 CRB-8-08-11 (November 17, 2009). BACK TO TEXT

6 We uphold the trial commissioner’s denial of Corrections, ¶¶ 3 and 4 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. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

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