Damelio v. Anaconda, Inc.

The claimant was represented by Edward T. Dodd, Esq., 182 Grand Street, Waterbury, CT 06702.

The respondents were represented by Margaret Corrigan, Esq. and Richard Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the December 26, 1991 Finding and Dismissal of the Commissioner for the Fifth District was heard December 18, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo dos Santos and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the Fifth District Commissioner’s December 26, 1991 Finding and Dismissal which concludes that the claimant has not been totally disabled since 1984 as a result of his compensable back injury. On appeal, the claimant challenges the trial commissioner’s conclusion that the claimant did not have a total incapacity to work. We affirm the trial commissioner.

The commissioner’s Finding and Dismissal, as corrected, reveals the following facts. The claimant suffered a compensable injury on April 20, 1950, while in the course of his employment with the respondent-employer. The claimant was paid temporary total benefits until December 22, 1979, when a Form 36 was approved. Prior proceedings had determined that the claimant was not totally disabled after that date and until April 27, 1983 as he claimed but that he had a limited work capacity. See Damelio v. Anaconda, Inc., 4 Conn. Workers’ Comp. Rev. Op. 31, 281 CRD-5-83 (1987), no error, 15 Conn. App. 805, cert. denied, 208 Conn. 814 (1988).

In 1979, the claimant moved to Florida. Since April 3, 1984, the claimant’s treating physician has been Dr. Angelo Alves, a neurologist.

The claimant now claims total incapacity subsequent to April 3, 1984. He contends that some of the contrast medium used in a 1972 myelogram for his back injury, spilled into his brain and has remained there causing multiple symptoms. In addition to back pain, he presented the following symptoms to Dr. Alves: severe headaches, throbbing and pulsating, buzzing in his head, difficulty with hearing, runny nose when entering a cold environment, memory loss and emotional instability. Dr. Alves has consistently opined that the claimant is totally disabled due to his back injury.

Dr. William Druckemiller, a neurosurgeon, performed an independent medical examination on the claimant in early 1990. He found that the claimant’s prior spinal fusion surgery had failed, resulting in psuedoarthrosis. He also found that the claimant’s other complaints could not be traced to his back injury. Dr. Druckemiller found the claimant able to do light work without a lot of bending and lifting.

The trial commissioner specifically rejected the opinion of Dr. Alves and specifically accepted the opinion of Dr. Druckemiller, on the issue of the claimant’s alleged total disability. The commissioner therefore concluded that the claimant has not been totally disabled since 1984 as result of his compensable back injury and dismissed the claim. This appeal followed.

The evidence before the trial commissioner was in conflict. One physician opined that the claimant was capable of doing light work while another physician stated that it was his opinion that the claimant was totally disabled. “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. Tovish v. Gerber Electronics, 32 Conn. App. 595 (1993); Neal v. UTC/Pratt & Whitney, 10 Conn. Workers’ Comp. Rev. Op. 163, 1199 CRD-8-91-3 (1992). While the claimant’s advanced age, work history, job skills, education, receipt of disability benefits from his former employer as well as from Social Security may have justified a conclusion that he has a total incapacity to work; see Czeplicki v. Fafnir Bearing Co., supra; Castro v. General Electric, 9 Conn. Workers’ Comp. Rev. Op. 73, 75, 904 CRD-6-89-8 (1991); Bielik v. Scovill Mfg. Co., 1 Conn. Workers’ Comp. Rev. Op. 110, 52 CRD-5-81 (1982); these factors do not compel such a conclusion. Moreover, many of the symptoms that the claimant asserts made him incapable of working were, in the opinion of Dr. Druckemiller, unrelated to his back injury or the myelogram.

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. Rene Dry Wall Co., 9 Conn. Workers’ Comp. Rev. Op. 177, 876 CRD-6-89-6 (1991); 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.