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Monaco v. Metal Masters, Inc.

CASE NO. 2245 CRB-3-94-12



AUGUST 29, 1996











The claimant was represented by Steven Jacobs, Esq., Jacobs, Jacobs & Shannon, 265 Orange St., New Haven, CT 06510.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the December 7, 1994 Finding of Denial of Form 36 by the Commissioner acting for the Third District was heard November 17, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.


JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the December 7, 1994 Finding of Denial of Form 36 by the Commissioner acting for the Third District. They argue on appeal that the commissioner erroneously denied their Motion to Correct, and that his conclusions regarding the claimant’s work capacity were contrary to the evidence.

The commissioner ’s opinion recites the following facts: The claimant suffered a compensable back injury on March 16, 1981, which the respondents accepted by voluntary agreement. He was referred to Dr. Frankel, a neurosurgeon, who performed lumbar disc surgery and a myelogram on him. Dr. Frankel stated in June 1982 that the claimant would be unable to return to his usual employment, and opined in a June 23, 1983 report that he was permanently totally disabled. He reaffirmed that opinion on March 23, 1990. The claimant was also examined in July 1982 by Dr. Levy, who issued a report two years later indicating that the claimant did not need surgery, and that he had a 15 percent permanent partial disability. A similar diagnosis of 15 to 20 percent permanent partial disability was given by Dr. Davey on September 17, 1985. Dr. Davey also stated that the claimant was unmotivated to return to work, and was a poor candidate for retraining. He believes that the claimant’s physical condition and chronic pain have affected his motivation and his need for psychological counseling.

Since August 1984, the claimant has been treating with Dr. Berv, a psychiatrist, for depression. He believes that the claimant will need ongoing maintenance care for this condition. Dr. Arkins, a neurosurgeon associated with Dr. Davey, examined the claimant on August and September of 1992, diagnosing him with muscle spasm and a lumbar strain. In his opinion, the claimant had a chronic pain problem, but he could not recommend a specific therapy to treat that condition. He reexamined the claimant on May 11, 1994, and stated that the claimant’s condition had not changed.

The respondents filed a Form 36 on April 11, 1990 to terminate the claimant’s temporary total disability benefits, alleging that the evidence did not support their continuation, and that maximum medical improvement had been reached as of September 10, 1992. The commissioner disagreed, finding that the claimant continues to experience lumbar spine pain, and continues to treat for depression associated with his back pain, leaving him totally disabled. The respondents appealed that decision. Their Motion to Correct of December 13, 1994 sought to recharacterize the descriptions of the medical opinions of Drs. Frankel, Berv, and Arkins in the findings, as well as the ultimate conclusion. The commissioner denied that Motion to Correct.

Determining whether a claimant continues to be totally disabled at any given time is a question of fact. Haugh v. Leake & Nelson, 12 Conn. Workers’ Comp. Rev. Op. 201, 202-203, 1421 CRB-2-92-5 (March 15, 1994). The power and duty of determining the facts rests with the trial commissioner, who is entitled to determine the weight of the medical evidence and the credibility of testimony. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). His factual findings must remain intact unless they are unsupported by the evidence or fail to include undisputed material facts. Webb, supra, 71. The conclusions he draws from those facts must stand unless the law has been incorrectly applied to them, or an unreasonable inference has been drawn from those facts. Id. Furthermore, a Motion to Correct may properly be denied by a commissioner unless the corrections offered are undisputed and would have an effect on his ultimate conclusion. Sargent v. Rybczyk Plumbing & Heating, 13 Conn. Workers’ Comp. Rev. Op. 128, 129, 1660 CRB-6-93-3 (Jan. 31, 1995).

The respondents have argued that the commissioner’s decision to deny the Form 36 was based on two medical reports, neither of which supports his finding of continued total disability. One of these is Dr. Frankel’s June 23, 1983 report, which states: “It is my belief that Mr. Monaco is permanently totally disabled. I am sure that he will never be able to return to the type of work which he formerly did. He does not presently seem to be a suitable candidate for vocational rehabilitation.” (Claimant’s Exhibit A). The respondents attempt to distinguish this opinion from one disabling the claimant from all forms of employment. However, Dr. Frankel’s prior reports noted that the claimant had a tendency to reaggravate his back injury while moving around, causing him acute back pain that could confine him to his bed for a day or two. (Exhibit A, Feb. 8, 1983 report; March 10, 1982 report). The doctor’s subsequent reports of August 25, 1983, July 27, 1988, and March 23, 1990, all state that the claimant remains totally disabled from engaging in any form of gainful employment, with no significant change in his medical condition. (Exhibit A).

We cannot say that it was error for the trial commissioner to interpret these reports, including the June 23, 1983 report, as establishing the claimant’s total disability under § 31-307(a) C.G.S. Whether or not the claimant had some sort of residual light work capability was a factual question for the commissioner, and was not supported by Dr. Frankel’s reports. Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 1980 CRB-1-94-3 (Aug. 30, 1995). Similarly, Dr. Arkins’ May 11, 1994 report states that the claimant is “chronically disabled by pain in the back and the leg,” and that he “spends perhaps a total of 5 hours a day out of bed and has a great deal of difficulty getting out of bed in the morning.” Although no mention was made of the claimant’s work capacity, the commissioner could infer from that report that the claimant was currently totally disabled in light of other medical evidence in the record.

As the respondents mention in their brief, Dr. Davey testified that, in his opinion, the claimant could function in the workplace in a light duty capacity with a 20 percent permanent partial disability of his back. (Respondent’s Exhibit 2, pp. 22-23.) Where the medical evidence is in conflict, however, the commissioner is entitled to resolve that conflict either way. Haugh, supra, 203. The causal relationship between the claimant’s physical disability and his psychological ailment is clear enough from the evidence to support a conclusion that they contributed to whatever disability the claimant had. Although an independent medical examination would probably have helped define the current status of the claimant’s disability, we cannot say that the medical evidence in the record was legally insufficient to support the commissioner’s ruling.

The trial commissioner’s decision is affirmed.

Commissioner Amado J. Vargas concurs.

ROBERTA SMITH TRACY, COMMISSIONER, DISSENTING. I respectfully dissent from the majority’s decision. There is not enough evidence in this record to legally support a conclusion that the claimant is currently totally disabled. Dr. Arkins’ medical report makes no mention of the claimant’s work capabilities, and the reports of Dr. Frankel are six years old, at most recent. The only reliable updated medical evidence is that of Dr. Davey and Dr. Berv, and neither has provided testimony that would be adequate to establish that the claimant is still totally disabled. Therefore, I would reverse the trial commissioner’s decision.

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