Rapuano v. Standard Builders, Inc.

The claimant was represented by John D’Elia, Esq., Kennedy & Johnson, Long Wharf Maritime Center, 545 Long Wharf Dr., New Haven, CT 06511.

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

The Second Injury Fund was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the February 15, 1994 Finding and Award of the Commissioner for the Fifth District was heard March 10, 1995 before a Compensation Review Board panel consisting of Commissioners George Waldron, Roberta Smith D’Oyen and Amado J. Vargas.

OPINION

GEORGE WALDRON, COMMISSIONER. The claimant has petitioned for review from the February 15, 1994 Finding and Award of the commissioner for the Fifth District. The trial commissioner found that the claimant sustained a compensable injury to his back on February 26, 1990, and that he reached maximum medical improvement on November 19, 1990 with a twenty-five permanent partial disability of his back. At issue in this appeal is the trial commissioner’s conclusion that the claimant’s period of total disability ended on December 14, 1990. In support of his appeal to this Board, the claimant contends that the uncontroverted evidence produced at the formal hearing establishes that the claimant was totally disabled subsequent to December 14, 1990.

At the formal hearing, the claimant produced a deposition of Dr. Sella, an orthopedic surgeon, who treated the claimant’s injuries. Dr. Sella testified that the claimant’s back injury totally disabled him from his occupation as a carpenter, and that when the claimant’s background, education, and mental state are considered, the claimant is untrainable and completely disabled. In December, 1991, the claimant was evaluated by a vocational expert, Mr. Cestar, who interviewed the claimant for less than one hour and also examined the claimant’s medical records. Mr. Cestar testified that based upon his evaluation, the claimant was competitively unemployable and had no transferable skills. In addition, the claimant was examined by Dr. Robinson, a neurosurgeon, on July 14, 1991, at the request of the respondent. Dr. Robinson opined that although the claimant could not perform carpentry or construction work, he “could probably do very light work” based upon his functional limitations. (Finding No. 33).

The claimant contends in his appeal that Dr. Sella’s opinion that the claimant was temporarily totally disabled was not contradicted by either Dr. Robinson or Mr. Cestar. We disagree. The commissioner found that Dr. Robinson, although he did not specifically address the claimant’s work capacity in his examination, opined that the claimant could perform some type of light duty work. The commissioner further found that Mr. Cestar, in making his evaluation, had not inquired into the claimant’s prior work history, had not determined the claimant’s IQ, literacy, driving ability, or physical dexterity, and had not looked into part-time jobs or jobs outside the New Haven area.1 The commissioner thus appears to have given little weight to Mr. Cestar’s testimony. Moreover, the commissioner noted that Mr. Cestar admitted on cross examination that the claimant physically could “probably” perform some type of work. (Finding No. 41).

The issue of whether a claimant is totally disabled requires a factual determination. Prioleau v. Larosa Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 140, 144-5, 1432 CRB-8-92-6 (April 7, 1994). We will not disturb such a determination unless it is found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Id., see also Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the commissioner concluded that the claimant had “failed to produce credible evidence that he is in fact totally disabled from any occupation which his education, training, physical ability and experience might reasonably allow him to pursue,” and denied the claim for total disability.2 The factual determination regarding the claimant’s alleged total disability was based upon the weight and credibility which the trial commissioner accorded the evidence. We will not disturb such a determination. Dickey v. Harris Graphics, 12 Conn. Workers’ Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994). While Dr. Sella’s opinion may have supported a determination that the claimant was totally disabled, it did not compel such a conclusion by the commissioner. Id. Even where an expert’s testimony regarding total disability is not directly disputed, the trial commissioner is not bound to accept it. Woznicki v. Meriden Yellow Cab, 12 Conn. Workers’ Comp. Rev. Op. 238, 239, 1509 CRB-8-92-9 (March 28, 1994).

Accordingly, the trial commissioner’s decision is affirmed.

Commissioners Roberta Smith D’Oyen and Amado J. Vargas concur.

1 The claimant, in a motion to submit additional evidence filed with this Board on February 28, 1994, sought to introduce a report which takes the factors cited by the commissioner into account. The claimant’s motion was denied by the Compensation Review Board on January 13,1995. BACK TO TEXT

2 We note that the commissioner specifically found that the claimant made no effort to engage in vocational rehabilitation, improve his language skills, or look for work. BACK TO TEXT