State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Smith v. Federal Express Corp.

CASE NO. 4242 CRB-7-00-5



AUGUST 22, 2001











The claimant was represented by Michael Ewing, Esq., Adelman, Hirsch & Newman, 1000 Lafayette Boulevard, Bridgeport, CT 06604.

The respondents were represented by Michael V. Vocalina, Esq., Berchem, Moses & Devlin, 75 Broad Street, Milford, CT 06460.

This Petition for Review from the May 15, 2000 Finding and Award of the Commissioner acting for the Seventh District was heard April 27, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the May 15, 2000 Finding and Award of the Commissioner acting for the Seventh District. They assert on appeal that the trier erred by finding that the claimant was temporarily totally disabled in light of the medical evidence. We disagree, and affirm the trial commissioner’s decision.

Pursuant to an approved voluntary agreement dated January 14, 1999, it has been established that the claimant suffered an injury to his left hip and other body parts after being struck by a motor vehicle on July 26, 1996 while in the course of his employment as a courier for the respondent Federal Express. His injuries required surgery, after which he was confined to his bed for a period of time. It was then discovered that the claimant was developing ectopic bone formation in his hip joint, which prevented him from undertaking physical therapy. This, in turn, prevented him from medically improving. As a result, the claimant was temporarily totally disabled. The issue before us here concerns the trier’s determination as to the ending date of said disability period.

The trier found that, for over two years, every doctor who treated the claimant found that he was totally disabled. This includes Drs. Shammas, Bruno, and Levitt, the latter of whom performed an independent medical examination on behalf of the respondents. Dr. Levitt then issued a report on December 1, 1998 stating that the claimant in fact had a sedentary work capacity. Dr. Bruno disagreed, stating on January 7, 1999 that he remained “completely and totally disabled” and that he would remain so “until the hip miraculously stabilizes or until surgical treatment is undertaken.” Findings, ¶ 7; Motion to Correct, ¶ II. However, all three doctors agreed that further surgery was not an option due to the claimant’s susceptibility to ectopic calcification. Drs. Levitt and Shammas concurred that, without surgery, the claimant has reached maximum medical improvement. The trier concluded that he continued to be totally disabled, and ordered the respondents to resume such payments. The respondents now appeal from that ruling, and from the trier’s denial of part of their Motion to Correct.

Whenever this board is asked to review a trial commissioner’s decision that rests upon the credibility of conflicting evidence, including the testimony of expert witnesses, we must apply a very deferential standard of review. Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). The quintessence of the trier’s factfinding prerogative is the authority to evaluate the weight of such evidence, and we may disturb the trier’s factual findings only if they lack any support in the evidence, or if they fail to include undisputed material facts. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999); Goldberg, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). We are not empowered to retry a case on appeal and substitute our inferences for those of the trial commissioner. Keenan v. Union Camp Corp., 49 Conn. App. 280, 282-83 (1998); Palandro v. Bernie’s Audio-Video T.V. & Appliances, 3876 CRB-3-98-8 (Sept. 2, 1999). In the instant appeal, the respondents raise two issues, both of which implicate the inferences drawn by the trial commissioner from the medical evidence presented to him. Thus, the aforementioned rules apply.

The first objection raised by the respondents on appeal is to the trier’s denial of ¶ I of their Motion to Correct. In ¶ 2 of his Findings, the trier stated, “From July 26, 1996, every doctor who treated Claimant opined that Claimant was totally disabled and unable to work . . . .” Paragraph 4 then notes, “In his report of December 1, 1998, Dr. Levitt opines that Claimant did then have a sedentary work capacity (Respondent’s Exhibit 1).” The respondents moved to strike the word “every” from ¶ 2 on the ground that Dr. Kathleen Fink treated the claimant for rehabilitation purposes, and that she agreed with Dr. Levitt that the claimant would only be capable of returning to work in a sedentary position. They argue that the trier’s denial of this correction has resulted in the unreasonable inference that every doctor deemed the claimant totally disabled.

In making this argument, the respondents overlook the fact that a trial commissioner’s denial of a Motion to Correct is itself a determination of evidentiary credibility. Pilewski v. Danbury Auto Park, 3916 CRB-7-98-10 (Sept. 23, 1999); see also, Admin. Reg. § 31-301-4. Pursuant to Admin. Reg. § 31-301-3, the trial commissioner is directed to omit “excerpts from evidence or merely evidential facts” from his findings, as well as the reasons for his conclusions. Thus, if the trier was not persuaded that he had misjudged the evidence by the assertions in the Motion to Correct, or did not believe that the requested changes would affect the outcome of the case, he was not required to amend his findings accordingly. The trier in fact granted one of the proposed corrections, as noted above. However, by specifically denying ¶ I of the respondents’ motion, the commissioner has effectively demonstrated that he did not find the reports of Dr. Fink credible with respect to the issue of the claimant’s work capacity, and for that reason did not cite them in his opinion. Pilewski, supra; see also, Pallotto, supra (by stating that “no medical evidence” supports compensability, trier was actually stating that there was no credible medical evidence to support existence of causal connection between injury and employment). We cannot overturn that assessment on appeal. Read in conjunction with ¶ 4 of the Findings, we perceive no meaningful error in the trier’s use of the word “every” in ¶ 2, and therefore find no grounds for reversal.

The respondents’ second objection concerns ¶ 8, which states in part, “Drs. Shammas, Levitt and Bruno all conclude that further surgery on Claimant is not an option due to his susceptibility to ectopic calcification within the hips.” They are concerned that this finding purports to preclude the possibility of future surgery on the claimant, which if successful could allow him to regain a work capacity. We do not read ¶ 8 of the Findings in the expansive manner feared by the respondents. Workers’ compensation claims by their nature involve continuing changes of circumstances, and it is understood that a claimant’s medical condition will normally evolve over a period of months or years. Should one of the claimant’s doctors decide that surgery is indeed a viable option at some point in the future, whether by dint of a change in his health or a change in the doctor’s opinion, the respondents would unquestionably be entitled at that juncture to seek a hearing on that matter and pursue a discontinuance of total disability benefits. They cannot be deprived of that right by the language of the trier’s ruling here, absent some form of express waiver or compromise.

In the meantime, we affirm the trial commissioner’s decision on all points. There is medical evidence in the record that clearly supports a finding of continued total disability, on which the trier was entitled to rely. Webb, supra. Insofar as any benefits due the claimant may have remained unpaid pending the resolution of this appeal, interest is awarded as required by § 31-301c(b).

Commissioners George A. Waldron and Ernie R. Walker concur.

Workers’ Compensation Commission

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