Greene v. UTC/Pratt & Whitney

The claimant was represented by Richard Jacobs, Esq., Jacobs, Jacobs & Shannon, 265 Orange Street, New Haven, CT 06510.

The respondents were represented by Richard Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the November 1, 2000 Finding and Dismissal of the Commissioner acting for the Eighth District was heard July 20, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and James J. Metro.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 1, 2000 Finding and Dismissal of the Commissioner acting for the Eighth District. In that decision, the trial commissioner found that the claimant’s compensable repetitive trauma injuries (right hand injury of February 1, 1992 and left shoulder injury of January 15, 1991) did not render her totally disabled, and thus denied her request for temporary total disability benefits. In support of her appeal, the claimant argues that the trier erred by not finding her to be temporarily totally disabled as of September 22, 1997. We affirm the trial commissioner’s decision.

In support of her appeal, the claimant contends that the deposition testimony of Dr. Sumner, her treating orthopedic physician, supports her claim for total disability benefits. Specifically, the claimant argues that Dr. Sumner opined that as of September 22, 1997, the claimant was totally disabled due to her work injuries. The claimant cites portions of the deposition transcript in which Dr. Sumner appears to be indicating that the claimant’s compensable right hand and left shoulder injuries were each, standing alone, a proximate cause of her disability. However, a careful reading of the deposition transcript supports the trial commissioner’s finding that Dr. Sumner opined that the claimant was capable of light duty work.

Specifically, initially in the deposition transcript Dr. Sumner is discussing whether the claimant could return to her regular employment which involved repetitive motion, not whether the claimant could return to any type of employment. The doctor explained, “. . . I didn’t think that she should go back . . . into a repetitive industrial field such as polishing or assembly . . .” December 9, 1999, Deposition, p. 27 (Claimant’s Exh. O). When asked whether the claimant was capable of performing any type of work, he replied that “. . . there might be a light duty type job she could do part time that doesn’t require repetitive work with her hands . . .” Id., 28; see also pp. 471 and 50.2

In discussing causation, Dr. Sumner was asked numerous questions regarding the claimant’s five different injuries. Specifically, in addition to her compensable right hand and left shoulder condition, the claimant had problems with her knees, back, and right shoulder which were not work-related. Id., 36; see Finding, ¶ 20. The doctor was asked: “Which of those various problems, in your opinion, kept her at that time from returning to her work as a polisher?” (emphasis added). Dr. Sumner replied, in pertinent part, that “. . . Each of them by themselves alone could have done it. . . .” Id., 28. Additionally, Dr. Sumner explained that as to her right hand injury, the claimant was discharged from his care on April 1, 1993; therefore, subsequent to that date the only work-related condition was the left shoulder. Id., 35.

Whenever a claimant asserts that she is totally incapacitated, the burden of proving such a disability falls upon her. 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). 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). In the instant case, the claimant’s claim regarding total disability involved the credibility of the claimant and required the trial commissioner to weigh all of the evidence. See Finding, ¶ 10. The evidence in the record fully supports the trial commissioner’s findings and conclusions regarding the claimant’s alleged total disability. Accordingly, it must stand. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In her appeal, the claimant also argues that the trial commissioner erred in denying her Motion to Correct in which she requested that findings be added to indicate that Dr. Sumner opined that the claimant was totally disabled due to her compensable injuries. As explained above, the deposition testimony of Dr. Sumner fully supports the trial commissioner’s determination that the claimant had a light duty capacity. Accordingly, the trial commissioner did not err in denying the Motion to Correct. Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (Jan. 20, 2000).

The trial commissioner’s decision is hereby affirmed.

Commissioners George A. Waldron and James J. Metro concur.

1 Q. . . . but based on her orthopedic injuries alone, is she totally disabled from all forms of gainful employment?

2 Q. So that’s what I’m saying, Doctor, from the standpoint she’s not totally disabled from a purely physical standpoint; is that correct?