Amato v. Preferred Insulation/Pfizer, Inc. et al.

The claimant was represented by George Romania, Esq., 2862 Whitney Avenue, Hamden, CT 06518.

The respondents Pfizer, Inc. and Wausau Insurance were represented by Richard Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The respondents Westconn Insulation, Inc. and the Hartford Insurance Group were represented by Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The Petitions for Review from the February 29, 2000 Finding and Award of the Commissioner acting for the Fourth District was heard December 1, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Preferred Insulation/Pfizer (“Pfizer”) and its insurer Wausau Insurance Co. (“Wausau”) have petitioned for review from the February 29, 2000 Finding and Award of the Commissioner acting for the Fourth District. The claimant also filed an appeal, as did the respondents Westconn Insulation, Inc. (“Westconn”) and its insurer the Hartford Insurance Group. In his decision, the trial commissioner found that the claimant had a work capacity and awarded § 31-308(a) benefits, and granted a Form 36 which ended temporary total disability effective March 11, 1999. The respondents argue on appeal that the trial commissioner erred by failing to find that the claimant reached maximum medical improvement. The claimant argues on appeal that the trial commissioner erred by granting the Form 36 which was filed on March 11, 1999. Specifically, the claimant argues that there was no evidence to support the trial commissioner’s conclusion that the claimant had the work capacity of a day care provider and was no longer totally disabled.

We begin our analysis by recounting our standard of review on appeal. When this board examines the decision of a trial commissioner, we inspect his factual findings with considerable deference. Rodrigues v. American National Can, 4043 CRB-5-99-4 (July 26, 2000); Cabral v. Metropolitan District Employees, 3770 CRB-1-98-2 (May 13, 1999). The trier’s fact-finding authority entitles him to determine the weight of the evidence presented and the credibility of all testimony offered by lay and expert witnesses, even if such evidence has not been expressly rebutted. Rodrigues, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board may not alter the commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed facts. Id. We do not retry cases on appeal, and we cannot disturb the trier’s legal conclusions unless they are the product of an incorrect application of the law to the facts or of an inference illegally or unreasonably drawn from them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Rodrigues, supra.

The respondents’ arguments concerning the commissioner’s failure to find that the claimant reached maximum medical improvement constitute a “textbook example of a factual issue that depends completely upon the trier’s assessment of the medical reports and physicians’ testimony.” Ford v. Carpenter Chapman, 4128 CRB-3-99-9 (Nov. 30, 2000), citing Bennett v. Federal Express Corp., 4023 CRB-4-99-4 (May 22, 2000); Hodgdon v. UTC/Pratt & Whitney, 16 Conn. Workers’ Comp. Rev. Op. 164, 167, 3150 CRB-1-95-8 (May 2, 1997). In the instant case, Dr. Thimineur opined that the claimant was not yet at maximum medical improvement. Finding ¶ 39.1 The trial commissioner was thus entitled to find that the claimant had not yet reached maximum medical improvement and we are not in a position to disturb such a finding on review. Bennett, supra.

We will now address the claimant’s arguments regarding the commissioner’s denial of temporary total benefits and award of § 31-308(a) benefits. Whether a claimant has satisfied the statutory criteria for § 31-308(a) wage differential benefits is a factual determination for the trial commissioner. Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995). A partially incapacitated claimant is entitled to benefits under § 31-308(a) when he is able to do some work but unable to fully perform his customary work, resulting in a loss of income. Rodrigues, supra, citing Shimko v. Ferro Corp., 40 Conn. App. 409 (1996). Similarly, whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (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 note that “under Osterlund v. State, 135 Conn. 498 (1949), ‘total incapacity to work’ means an inability to work at one’s customary calling or any other occupation that he might reasonably follow. The fact that a claimant has a light duty capacity is not conclusive of employability, because he may not realistically be able to find an employer who will hire him.” Fusciello v. Ronnie Demeo, Inc., 3406 CRB-8-96-8 (Feb. 4, 1998).

In the instant case, the trial commissioner found that the claimant was not totally disabled, but had “a work capacity equal to 30 hours per week at the average rate of daycare providers in his locale or area.” Finding ¶ L. This conclusion was based solely upon testimony from the claimant and his wife regarding the claimant’s daily care of his young son. Specifically, the claimant testified that he has been responsible for caring for his son while his wife has been working full time.2 However, no evidence was introduced regarding the duties which a daycare provider must be able to perform in order to be employable, and no opinions from any vocational experts were presented on this issue. Thus, the record does not support the conclusion that the claimant was capable of performing the duties of a paid daycare provider for thirty hours per week. Accordingly, we must remand this issue to the trial commissioner.

This matter is remanded to the trial commissioner for a further evidentiary hearing and determination regarding the claimant’s disability status.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

1 Dr. Thimineur stated in his April 21, 1999 report, in pertinent part: “His level of impairment is quite high despite his apparent good functional status. He suffers central pain and exacerbation of central pain with any use of his arms. Pain in itself has been shown by many studies to be extremely disabling. He is not at maximal medical improvement since there are therapeutic interventions which may significantly decrease his level of pain and improve his function.” Claimant’s Exh. E. BACK TO TEXT

2 We note that in the claimant’s testimony, although he admits that he can pick up his child, he testified that he does so very little because of his physical condition, that he normally waits for his wife to come home to bathe the child, and that the child is able to dress himself. July 12, 1999 Transcript, pp. 39-46; see also f.n. 1, supra. BACK TO TEXT