D’Amico v. State of Connecticut/Department of Correction

The claimant was represented by Harvey Levine, Esq., 754 West Main Street, New Britain, CT 06053.

The respondent was represented by Kenneth Kennedy, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the August 28, 2000 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 18, 2001 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Ernie R. Walker and Michael S. Miles.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The claimant has petitioned for review from the August 28, 2000 Finding and Dismissal of the Commissioner acting for the Fifth District. He contends on appeal that the trier erred by dismissing his claim for continuing total disability. The claimant has also filed a Motion to Submit Additional Evidence. We deny that motion, and affirm the trial commissioner’s decision.

Many of the facts relevant to this appeal were recapitulated in a prior decision by this board. See D’Amico v. State/Dept. of Corrections, 4029 CRB-5-99-4 (May 18, 2000)(hereinafter D’Amico I). The claimant suffered injuries to his neck, back, shoulders and arms during a September 24, 1992 altercation with an inmate that occurred in the course of the claimant’s employment as a correction officer. He later sought benefits for further related ailments, including a psychiatric condition, fibromyalgia, hypertension, and reflex sympathetic dystrophy of the right arm. He also requested approval for medical treatment at Spaulding Rehabilitation Center, an out-of-state inpatient program. The respondent has accepted the compensability of the claimant’s orthopedic injuries, along with post-traumatic stress disorder (PTSD) that he subsequently developed. It denies the claim for psychological depression and its associated treatment, however.

In an April 12, 1999 Finding and Award, the claimant was found to have reached physiological maximum medical improvement as of March 28, 1995, at which point permanent partial disability benefits became payable. Though the claimant physically had a work capacity at that time, the trier noted that his finding was without prejudice to a future total disability claim for psychiatric reasons “based upon a change in the Claimant’s condition and/or the opinions of Dr. Swords who was appointed a treating physician subsequent to acceptance of the post traumatic stress disorder.” Findings, ¶ I. The commissioner also approved treatment at Spaulding, which ruling was affirmed by this board in D’Amico I.

From the August 28, 2000 Finding and Dismissal we learn that the respondent notified the claimant in May 1999 that it would pay for an evaluation and up to 28 days of treatment at Spaulding, with the caveat that it would expect to be reimbursed with interest if the D’Amico appeal were adjudicated in its favor. The claimant testified that he was unaware of this offer, and could not have paid for the treatment himself anyway had he lost the appeal. (As noted above, the claimant prevailed in a decision dated May 18, 2000.) He also averred that he had been trying to find work for the past eight years, and had obtained work entering information into a computer in a job setting that allowed him to come and go as he pleased. According to the claimant, he was able to drive a car, help his children with their homework, do grocery shopping, and complete some household chores.

Dr. Swords, whom the respondent had deposed (Joint Exhibit 3), testified that the claimant’s condition had waxed and waned during the period of his treatment as the claimant’s psychiatrist. Though there may have been spells during which the claimant was employable, he had more often than not been incapable of working due to depression, fatigue, post-traumatic stress disorder, anxiety, pain, and his physical impairments. As of October 22, 1998, Dr. Swords pronounced the claimant disabled for the indeterminate future.1 Dr. Beck, the claimant’s treating physiatrist, thought the claimant’s functional capacity severely limited as of January 29, 2000. Due to daily fluctuations in his condition, he was not a candidate to return to work in any capacity. Yet, if there were such a thing as part-time, infrequent self-directed employment, the claimant would have days during which he could perform such a job. Earlier, as reflected in the 1999 Finding and Award, the opinions of Dr. Beck and Dr. Grayson had been supportive of a finding of work capacity.

The trial commissioner thought it acceptable that the claimant had delayed his treatment at Spaulding until the legal issue of its reasonableness had been resolved. Thus, he rejected the respondent’s request that all rights to compensation be suspended pursuant to § 31-294e(b). However, the trier also concluded that the claimant’s circumstances had not changed sufficiently since the spring of 1999 to support a claim for total disability, and declined to award such benefits. The claimant has filed a petition for review from that decision.

When a claimant asserts that he is totally incapacitated and thereby entitled to benefits pursuant to § 31-307(a), the burden of proving such a disability falls squarely upon him. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 454 (2001); Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42 (1996). In a complex case such as this, where the claimant alleges that his disability is caused by a combination of physical and psychological problems, it is absolutely necessary that a competent medical provider offer testimony and/or documentation to establish such a condition within a reasonable degree of medical certainty. Dengler, supra, 449, 455. However, a claim is not proven merely because a claimant offers evidence that is capable of satisfying this standard. The trial commissioner acts as the finder of fact and the arbiter of the credibility of all witnesses, both lay and expert, whether or not their testimony is expressly contradicted. Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000); Garcia v. Bridgeport, 3595 CRB-4-97-4 (June 8, 1998). If the factfinder is not persuaded that any of the evidence in the record is reliable, then the claimant’s action must fail. Warren v. Federal Express Corporation, 4163 CRB-2-99-12 (Feb. 27, 2001). A trier is not required to justify in writing every impression that he or she draws from the evidence; Admin. Reg. § 31-301-3; and this board is not empowered to overturn such appraisals of credibility on appeal. Warren, supra; Goldberg, supra; Garcia, supra.

The aforementioned ¶ I of the trier’s April 12, 1999 Finding and Award is the launching point for much of the claimant’s argument here on appeal. He interprets this finding as setting forth two prerequisites, either of which would automatically establish a future period of total disability if satisfied: a change in the claimant’s condition, or an opinion by Dr. Swords that supported total disability. According to the claimant, he “fulfilled the said requirement for psychological total disability” in light of Dr. Swords’ opinions. Brief, pp. 6-7. This argument seems to ignore the fact that the trial commissioner does not divest himself of the discretion to evaluate the credibility of a doctor’s opinion whenever he leaves an issue of causation or disability open subject to the opinion of that doctor. If this were not so, then a trial commissioner would also be bound to accept the opinion of a § 31-294f examiner whenever such an evaluation was ordered. Instead, a trier is free to credit all, part or none of a § 31-294f examiner’s opinion. Tartaglino v. State/Dept. of Correction, 55 Conn. App. 190, 195-96 (1999). A similar principle applies here. The trial commissioner remained free to accept or reject all or part of Dr. Swords’ opinion, as he saw fit. Id.

The commissioner’s findings demonstrate that he was aware of Dr. Swords’ and Dr. Beck’s beliefs that the claimant was practically unemployable, though the latter was able to envision a limited theoretical work capacity. The finder of fact was simply unconvinced that these opinions, together with the claimant’s testimony, demonstrated that the claimant was totally disabled from employment. Despite the claimant’s exhortations, the commissioner was not remiss in placing weight on the claimant’s view of his own capabilities. Brief, pp. 14-17. Dr. Swords’ perceptions that the claimant wanted to work and that he was frustrated at being unable to provide for his family were equally subject to the trier’s credibility assessment, and did not require the commissioner to disregard the claimant’s testimony regarding his own fitness for employment. There is little need for further discussion on our part, as we have no legal basis upon which to reverse a trial commissioner’s decision on appeal where he is unpersuaded by a claimant’s evidence. Goldberg, supra.

With regard to the claimant’s Motion to Submit Additional Evidence, we note that the parties agreed on the record that the instant claim for total disability ranges from the date of Dr. Swords’ October 22, 1998 letter through the April 3, 2000 date of the formal hearing. April 3, 2000 Transcript, p. 49. The report submitted by the claimant as additional evidence is an August 1, 2000 discharge summary by Dr. Chae, a staff member at Spaulding Rehabilitation Hospital. Dr. Chae’s summary discusses several items, including the claimant’s inability to complete therapy due to his fibromyalgia and the negative effect that his past experiences were having on his recovery. Under Admin. Reg. § 31-301-9, this board may grant a motion to submit additional evidence when the evidence is material to the instant action, and there are good reasons why it was not presented in the proceedings below. Though the instant report was clearly not available as of April 3, 2000, it is also not directly relevant to the period of time covered by the claimant’s total disability claim. Whereas total incapacity is a matter of continuing proof; Dengler, supra; this report would appear more apropos to a disability claim for the time period subsequent to April 3, 2000. Principles of finality in judgments also counsel against reopening the proceedings on the basis of this evidence, which is somewhat cumulative of the other medical reports that advocate total disability. See Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). We therefore deny the claimant’s motion.

The trial commissioner’s decision is hereby affirmed.

Commissioners Ernie R. Walker and Michael S. Miles concur.

1 In his brief, the claimant attempts to make much of the language in ¶ 16 of the trier’s Findings, which states, “On October 22, 1998, Dr. Swords issued a report indicating that the Claimant remains totally employable at this time and for the indeterminate future.” Clearly, the finding should read “totally unemployable.” Despite the claimant’s assertion that this amounts to an unreasonable factual inference, it is very evident that this is nothing more than a typographical error from the subordinate findings as a whole, from the structure and meaning of the challenged sentence, and from the relative implausibility of a commissioner describing someone as “totally employable.” Scrivener’s errors such as this are generally overlooked on review. Palma v. Manuel A. Pinho Landscaping, 4047 CRB-7-99-5 (July 18, 2000). BACK TO TEXT