Gerena v. Rockbestos Company

The claimant was represented by Roger S. Reger, Esq., Rolnick & Reger, 2832 Whitney Ave., Suite A, Hamden, CT 06518.

The respondents were represented by John M. Letizia, Esq., Byrne & Letizia, Woodbridge Corporate Park, 1764 Litchfield Trnpk., Suite 106, Woodbridge, CT 06525.

This Petition for Review from the March 10, 1994 Finding and Award of the Commissioner acting for the Fifth District was heard January 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the Finding and Award of the Commissioner for the Fifth District. In that decision, the trial commissioner found that the claimant sustained a compensable injury to his foot on July 10, 1986, which aggravated a preexisting pelvic obliquity and postural abnormality, thus injuring the claimant’s back. The trial commissioner concluded that the claimant’s injury rendered him unable to work, and thus awarded the claimant benefits pursuant to § 31-307 C.G.S. The respondents contend that the commissioner improperly awarded the claimant temporary total disability benefits despite evidence that the claimant had a capacity to perform limited light duty work. We affirm the trial commissioner’s decision.

In support of their appeal, the respondents contend that the record does not support the commissioner’s award of temporary total disability benefits. Specifically, they contend that the medical evidence does not indicate that the claimant is totally disabled, but does indicate that he is capable of performing some types of employment. Section 31-307 C.G.S. provides benefits when a compensable injury results in a claimant’s “total incapacity to work.” Whether a claimant is totally disabled from working is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 1680 CRB-2-93-3 (decided April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). We will not disturb the commissioner’s factual determination unless his conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In the instant case, the trial commissioner cited numerous, and sometimes conflicting, medical reports and vocational rehabilitation reports in his findings of fact. Where evidence is in conflict, the trial commissioner’s conclusion must stand so long as there is evidence to support it. Pulcinella v. Prudential Insurance Company, 10 Conn. Workers’ Comp. Rev. Op. 251, 1236 CRD-6-91-5 (January 11, 1993). We conclude that the commissioner’s conclusion that the claimant was totally incapacitated is supported by the record, including: (1) the claimant was diagnosed as having severe osteoarthritis of the left ankle and myofascial pain of the left lower back (Finding Nos. 18 and 21); (2) the claimant’s physical limitations limit him to a sedentary desk job where he could also stand up during the day (Finding Nos. 30 and 35); (3) the claimant is over sixty years of age (Finding No. 36); and (4) the claimant has limited education and experience for desk jobs (Finding Nos. 37-39). Accordingly, we will not disturb the commissioner’s determination. See Fair, supra.

Moreover, the respondents are incorrect in their assertion that a claimant cannot be eligible to receive temporary total disability benefits if he can perform some type of work. Our Supreme Court stated that “[a] finding that an employee is able to work at some gainful occupation within his reasonable capacities is not in all cases conclusive that he is totally incapacitated. If, though he can do such work, his physical condition due to his injury is such that he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.” Osterlund v. State, 135 Conn. 498, 506-507 (1949).

In further support of their appeal, the respondents contend that the undercover surveillance videos which are in the record contradict the claimant’s testimony regarding his physical limitations. In the instant case, the commissioner considered the surveillance videos and specifically found that they did not contradict the claimant’s testimony regarding his physical capabilities. (Findings of Fact Nos. 67-69). We may not disturb the commissioner’s conclusions which are dependent on the weight and credibility accorded the evidence. Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994). We conclude that it was within the discretion of the commissioner to determine that the claimant was eligible to receive benefits pursuant to § 31-307 C.G.S.

The trial commissioner’s decision is affirmed and the respondents’ appeal is dismissed.