Calderoni v. B & T Contractors et al.

The claimant was represented by Steven S. Berizzi, Esq., Law Offices of R. Bartley Halloran, One Lewis Street, Hartford, CT 06103.

The respondents B & T Contractors and The Hartford Insurance Group were represented by Laurence McLoughlin, Esq., Edward M. Henfey & Associates, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

The respondents B & T Contractors and ACE USA (formerly CIGNA) were represented by David Schoolcraft, Esq., Duhamel & Schoolcraft, 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.

The respondents B & T Contractors and Travelers (formerly Aetna Casualty & Surety) were represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The respondents Morganti Construction and USF & G were represented by Laura Waltman, Esq., O’Connell, Flaherty & Attmore, 280 Trumbull Street, Hartford, CT 06103-3598.

This Petition for Review from the March 7, 2000 Finding of the Commissioner acting for the Fifth District was heard October 27, 2000 before a Compensation Review Board panel consisting of Commissioners Robin L. Wilson, Leonard S. Paoletta and Ernie R. Walker.

OPINION

ROBIN L. WILSON, COMMISSIONER. The claimant has petitioned for review from the March 7, 2000 Finding of the Commissioner acting for the Fifth District.1 In that decision, the trial commissioner denied the claimant’s request for temporary total disability benefits. In support of his appeal, the claimant argues that the trier erred by not finding him to be temporarily totally disabled effective May 27, 1997. We affirm the trial commissioner’s decision.

The following facts are relevant to this appeal. The trial commissioner took administrative notice of a Finding and Award issued by Commissioner Doyle on May 29, 1997, and incorporated the findings and conclusions of said decision into his decision. In the May 29, 1997 decision, Commissioner Doyle found that the claimant sustained numerous injuries while employed as a mason for the respondent employers. Specifically, on August 15, 1972 the claimant injured his right knee; on June 23, 1980 he injured his left knee; on September 4, 1980 he injured his cervical and lumbar spine; on November 30, 1981 he injured his cervical and lumbar spine along with his left ankle and right leg; and on October 14, 1988 he injured his right shoulder, neck, back, and right hand.

In the May 29, 1997 decision, the trial commissioner denied the claimant’s claim for total disability benefits subsequent to January 18, 1991. The trial commissioner found that in 1990 the claimant underwent treatment for cardiac arrhythmia, and underwent a two vessel angioplasty on April 17, 1990. The claimant’s heart condition was not found to be compensable. On December 1, 1995, a trial commissioner’s examination was performed by Dr. D’Angelo, who testified that the claimant could only do light work with regard to his orthopedic injuries, but that as a result of his heart condition he could not do any work. The claimant testified that he received social security disability benefits and that one of the basis of his qualification for these benefits was his heart condition. The trial commissioner concluded that with respect to his work injuries of 1972, 1980, 1981, and 1988, the claimant had a work capacity and was not totally disabled.

The claimant did not appeal the May 29, 1997 decision. However, he subsequently requested temporary total disability benefits, claiming that his condition had worsened since May 29, 1997. The trial commissioner addressed this request in his March 7, 2000 decision, which is the subject of the present appeal. The claimant’s claim was contested on the basis that the claimant did not sustain his burden of proof following the May 29, 1997 decision that his total disability was substantially related to his compensable injuries. The trial commissioner found that subsequent to May 29, 1997, the claimant did not have any further surgeries. Additionally, the trial commissioner found that Dr. Greco testified by deposition that his opinion that the claimant was totally disabled had not changed since April 18, 1996. Dr. Greco testified that a 1998 MRI of the claimant’s back and neck showed severe degenerative changes but was essentially consistent with previously performed studies. Dr. Greco further testified that except for some medication changes, the nature of the claimant’s treatment was the same as it had been in 1996, and that his opinion that the claimant’s condition had worsened was based upon the claimant’s subjective increase in pain.

A trial commissioner’s examination was performed on August 25, 1998 by Dr. Ferraro, who opined that the claimant had generalized degenerative osteoarthritis involving essentially every major joint of his body. He opined that the claimant was totally disabled from every type of employment. Dr. Ferraro testified that it was impossible to parcel out which degenerative changes were due to the work injuries as opposed to the progression of arthritis. Based upon the medical opinions of Dr. Greco and Dr. Ferraro, the trial commissioner concluded that there had been no significant change in the claimant’s condition since the May 29, 1997 decision. The trial commissioner further concluded that the claimant failed to sustain his burden of proof that there has been a substantial change in his medical condition with regard to his compensable work-related injuries. The trial commissioner thus denied his request for temporary total disability benefits.

In support of his appeal, the claimant contends that in the May 29, 1997 decision, Commissioner Doyle found that the claimant was not totally disabled and that subsequently he became totally disabled. To the contrary, the commissioner in his May 29, 1997 decision did not conclude that the claimant was not totally disabled; rather, he concluded that with respect to his work injuries of 1972, 1980, 1981, and 1988, the claimant had a work capacity and was not totally disabled, after finding that Dr. D’Angelo testified that the claimant could only do light work with regard to his orthopedic injuries, but that as a result of his heart condition he could not do any work.

Furthermore, the claimant contends in his appeal that the opinions of Dr. Greco and Dr. Ferraro support his claim for total disability benefits, as both doctors opined that his total disability was substantially due to his work injuries. Whenever a claimant asserts that he is totally incapacitated, the burden of proving such a disability falls upon him. Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 42 (1996); Curtiss v. State/Dept. of Mental Retardation Region 2, 3220 CRB-6-95-11 (Aug. 20, 1997). As always, the trial commissioner acts as the finder of the facts and the judge of the credibility of the evidence before him, and the mere fact that some of the medical reports appeared uncontradicted did not make the opinions contained within them admitted or undisputed. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Absent a clear abuse of discretion, this board cannot disturb a decision made by the commissioner regarding the appropriate weight to give the evidence. Jusiewicz, supra.

In his appeal, the claimant ignores the fact that in the May 29, 1997 decision, the trial commissioner concluded that his work-related injuries were not a substantial cause of his inability to work. The trial commissioner in the instant case incorporated the findings and conclusions of the May 29, 1997 decision into his decision. The trial commissioner specifically reviewed the opinions of Dr. Greco and Dr. Ferraro, and concluded that the claimant had failed to sustain his burden of proof that there had been a substantial change in his medical condition with regard to his compensable work-related injuries. As this conclusion is supported by the findings and by the evidence in the record, and is not based upon unreasonable factual inferences or contrary to law, it may not be disturbed. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Moreover, as the claimant did not file a Motion to Correct the findings, 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 trial commissioner’s decision is hereby affirmed.

Commissioners Leonard S. Paoletta and Ernie R. Walker concur.

1 We note that at oral argument before this board, the respondents B & T Contractors and Travelers (formerly Aetna Casualty & Surety) withdrew their Motion to Dismiss the claimant’s appeal. BACK TO TEXT