Dickey v. Harris Graphics

The claimant was represented by Mark W. Oberlatz, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.O. Drawer 929, Groton, CT 06340.

The respondents were represented by Kevin M. Blake, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main Street, Suite 310N, West Hartford, CT 06107-2445.

This Petition for Review from the July 28, 1992 Finding and Award of the Commissioner for the Second District was heard June 11, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the Second District Commissioner’s July 28, 1992 Finding and Award. In that Finding and Award, the trial commissioner found that the claimant was totally disabled as a result of his compensable knee injury until November 23, 1987 when a Form 36 was approved; the claimant thereafter was temporarily partially disabled until he reached maximum medical improvement on January 4, 1988 and suffered a twenty percent permanent partial impairment of the right knee as a result of the injury; the claimant was entitled to permanent partial disability benefits from January 5 to December 3, 1988; the claimant was thereafter entitled to additional compensation pursuant to General Statutes Sec. 31-308a at the full compensation rate until September 21, 1989 when he became totally disabled again by virtue of surgery performed by Dr. William Cambridge. The sole issue on appeal is the claimant’s contention that the trial commissioner should have found him to be totally disabled between November 2, 1988 and September 21, 1989 based on the opinion of Dr. Cambridge, after a November 2, 1988 examination of the claimant, that the claimant was totally disabled and in need of further surgery. We affirm the trial commissioner.

The claimant’s argument to the contrary notwithstanding, the evidence before the trial commissioner was in conflict. On September 28, 1987, Dr. A. John Elliot opined that the claimant could perform light duty work. This opinion provided evidentiary support for the commissioner’s decision to grant the Form 36, which decision is not challenged on appeal. Dr. Elliot also opined that the claimant had a twenty percent permanent impairment of the right knee and had reached maximum medical improvement as of January 4, 1988. This opinion provided evidentiary support for the commissioner’s award of permanent partial disability benefits commencing on January 5, 1988, which ruling is not challenged on appeal. In addition, the claimant testified that he made a diligent work search between November 18, 1987 and July 27, 1988, during which he came across jobs that he acknowledged he was able to do had he been offered employment. On November 2, 1988, Dr. Cambridge found, by contrast, that the claimant was experiencing pain which “for all practical purposes [is] disabling at this point since he is not back to work and is unable to pursue any of his recreational endeavors.” Before the trial commissioner, then, were different indicators of the claimant’s work capacity. While no evidence directly contradicted Dr. Cambridge’s view that the claimant was totally disabled as of November 2, 1988, the evidence for a full year prior to that date showed the claimant had a work capacity.

“The arbiter of a claimant’s total incapacity is the trial commissioner and his ruling is dependent upon a factual determination. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454 (1951); Muir v. Trailways of New England, 4 Conn. Workers’ Comp. Rev. Op. 118, 480 CRD-6-86 (1987). See also Neumann v. Southern Connecticut Gas Co., 4 Conn. Workers’ Comp. Rev. Op. 62, 265 CRD-4-83 (1987).” French v. Town of Greenwich, 7 Conn. Workers’ Comp. Rev. Op. 115, 115-16, 698 CRD-7-88-2 (1989). The factual determination reached below was dependent upon the weight and credibility accorded the evidence. We will not disturb conclusions which are so based. Damelio v. Anaconda, Inc., 1363 CRD-5-91-12 (decided November 3, 1993); Neal v. UTC/Pratt & Whitney, 10 Conn. Workers’ Comp. Rev. Op. 163, 1199 CRD-8-91-3 (1992). While Dr. Cambridge’s opinion would have justified a conclusion that the claimant had a total incapacity to work as of November 2, 1988, it did not compel such a conclusion as the commissioner was free to reject that view in light of the other evidence before him. Smith v. Smith, 183 Conn. 121, 123 (1981); Churchill v. Skjerding, 31 Conn. App. 247, 252, cert. denied, 226 Conn. 914 (1993); Lageux v. Veilleux, 9 Conn. Workers’ Comp. Rev. Op. 177, 179, 876 CRD-6-89-6 (1991).

Because we do not retry the facts, it was within the province of the trial commissioner to resolve disputed factual issues as to the claimant’s work capacity. Lageux v. Veilleux, supra; French v. Town of Greenwich, supra. Our appellate review is limited to determining whether there was evidence to support such a conclusion and whether the conclusion was based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In the present case, there was sufficient evidence to sustain the conclusion reached.