Draughn v. Wallace International Silversmith

The claimant was represented by Jeffrey Rosenberg, Esq., 23 Kingsbridge Way, Madison, CT 06443.

The respondent was represented by Maureen Driscoll, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430.

This Petition for Review from the October 13, 1998 Finding and Dismissal of the Commissioner acting for the Third District was heard June 18, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The claimant has petitioned for review from the October 13, 1998 Finding and Dismissal of the trial commissioner acting for the Third District. In that decision the trial commissioner denied the claimant’s request for temporary total disability benefits. In support of his appeal, the claimant contends that the trial commissioner’s denial of temporary total disability is not supported by the evidence, and that the trial commissioner misinterpreted the opinion of Dr. Kaplan.

The trial commissioner found the following relevant facts. The claimant was injured in a non-compensable motor vehicle accident in 1984 and was disabled for six months, returning to work approximately three weeks prior to his compensable injury on September 21, 1984. On September 21, 1984, the claimant sustained a compensable strain injury to his neck and back while employed with the respondent employer. He was totally disabled for three weeks and then returned to light duty with the respondent employer where he worked until he was laid off in April of 1985. The claimant again returned to light duty work with the respondent employer for six to eight weeks, but was terminated in November of 1985 when his job was eliminated. The claimant testified that he sought light duty work but was unsuccessful. In an August 16, 1993 Finding and Award, Commissioner Loeb found that the claimant had a fifteen percent permanent partial impairment of the back, and that the claimant was capable of light duty work as of October 15, 1984.

The claimant was examined by Dr. Kaplan on August 2, 1989 and again on November 20, 1996. The X-rays performed in 1996 showed moderate osteoarthritis with no spondylosis or spondylolithesis, which is virtually identical to the 1989 X-rays. In 1989, Dr. Kaplan assessed a fifteen percent permanent partial disability of the back and opined that the claimant could do specific light duty work, and in 1996 he increased the permanent partial disability to twenty-five percent and concluded that the claimant was totally disabled. On August 13, 1997, the claimant was examined by Dr. Levy, a neurologist, who found that the claimant’s occillating eye movements and the jerking sensations in his limbs suggested a central nervous system disorder which he could not define, but which he did not believe were caused by the 1984 compensable injury. Dr. Levy could not determine whether the claimant’s back spasms were caused by the compensable injury or by a central nervous system disorder or by some brain disease.

On March 11, 1997, the claimant was examined by Dr. Shafer, an orthopedist, who testified that the claimant moved his back and neck in a jerky fashion, although the tests revealed that he had no motor sensory deficit or vascular abnormality. Dr. Shafer testified that he could find nothing in the claimant’s examination or on the X-rays which would indicate that he could not work. Furthermore, Dr. Shafer did not believe that the claimant’s permanent impairment of the back was any more than fifteen percent. The trial commissioner concluded that the claimant was not totally disabled.

In support of his appeal, the claimant contends that the trial commissioner misinterpreted the change in Dr. Kaplan’s medical opinion from 1989 to 1996, and thus erroneously dismissed Dr. Kaplan’s opinion that the claimant was totally disabled. Additionally, the claimant contends that the trial commissioner should have accepted Dr. Levy’s opinion that the claimant was totally disabled. We find no error.

Initially, we note that the claimant did not file a Motion to Correct the findings. Thus, we must assume that the facts found are accurate. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). The issue is thus whether the findings support the trial commissioner’s legal conclusions. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Jones v. Lillibridge, 16 Conn. Workers’ Comp. Rev. Op. 143, 3149 CRB-2-95-6 (November 27, 1996). Furthermore, even if a Motion to Correct had been filed, the trier would still have been entitled to choose among the conflicting medical testimony. See Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997).

Whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Rhodes v. Bourdon Forge Company, Inc., 3720 CRB-2-97-11 (Oct. 13, 1998); Fusciello v. Ronnie Demeo, Inc., 3406 CRB-8-96-8 (Feb. 4, 1998). Similarly, the question of whether a claimant has a light duty work capability is a factual decision for the commissioner. Fusciello, supra. The trial commissioner is the “sole arbiter of the weight of the evidence and the credibility of the witnesses.” Keenan v. Union Camp Corp., 49 Conn. App. 280, 286 (1998). His conclusions must stand unless they result from an incorrect application of the law to the facts found, or from an illegally drawn inference from the subordinate facts. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In the instant case, the medical evidence supports the trial commissioner’s conclusion that the claimant was no longer totally disabled. Specifically, Shafer testified with reasonable medical probability that the claimant had a work capacity. (9/19/97 Depo. at 9; see also Finding ¶ 23 and ¶ N). It was within the discretion of the trial commissioner, as the trier of fact, to accept the opinion of Dr. Shafer rather than the opinions of Dr. Levy or Dr. Kaplan. As the record amply supports the factual findings and conclusions of the commissioner, we will not disturb them. Fair, supra.