Hansen v. State of Connecticut Department of Correction

CASE NO. 4531 CRB-5-02-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 25, 2003

KATHLEEN HANSEN

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Nicholas W. Francis, Esq., Law Offices of Nicholas T. Kocian, PC, 182 Collins Street, Hartford, CT 06105.

The respondent was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141.

This Petition for Review from the May 2, 2002 Finding and Dismissal of the Commissioner acting for the Fifth District was heard January 24, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy A. Brouillet and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in the instant matter appeals from the Commissioner acting for the Fifth District’s May 2, 2002 Finding and Dismissal. In the Finding and Dismissal, the commissioner denied the claimant’s request to reopen the approval of respondent’s Form 36 filed May 22, 2000 and additionally found that the Form 36 was “appropriately approved effective August 18, 2000”. Findings, ¶ J.

The claimant appeals the trial commissioner’s conclusion that the claimant had a light work capacity and was not totally disabled. The pertinent facts are as follows. The claimant sustained a compensable back injury on April 8, 1993. A Voluntary Agreement reflecting that injury was approved by the Fifth District Commissioner on December 17, 1998. The claimant also sustained injuries to her neck and right elbow.

As to the claimant’s back injury, the Voluntary Agreement indicates that the claimant reached maximum medical improvement on June 5, 19951 and was provided permanent partial disability benefits for a 15 % loss to her back. Subsequent to her receipt of permanent partial disability benefits, the claimant was reinstated to temporary total benefits. The claimant attempted to return to work twice, but alleged that her duties which included restraining inmates, climbing stairs, etc., aggravated her back injury. Claimant last worked for the respondent on November 18, 1998.

On appeal the claimant essentially asks this board to substitute its findings for that of the trial commissioner. The claimant argues that the opinions of the claimant’s treating physician, Dr. Yolanda Pena and the respondent’s medical examiner Dr. William Fisher, an orthopedic surgeon, that the claimant was totally disabled compel an overturning of the trier’s conclusion that the claimant had a light work capacity.

However, supporting the trial commissioner’s conclusion that the claimant had a work capacity is the report of Dr. Jonas Lieponis, also an orthopedic surgeon. Dr. Lieponis’ examination of the claimant was done at the request of the commissioner. The trier found that Dr. Lieponis examined the claimant, reviewed the claimant’s past medical records and conducted a detailed physical examination of the claimant. The trial commissioner, thereafter, found the Dr. Lieponis’ opinion to be more credible than that of the other medical opinions and concluded that the claimant had a light work capacity.

On appeal, the claimant would have us review the instant matter de novo and substitute the findings and conclusion it seeks for those determined by the trial commissioner. However, our role on appeal is limited. We do not engage in de novo review, nor will we disturb the findings and conclusions of the commissioner unless they are without evidence, based on impermissible or unreasonable factual inferences, or contrary to law. Kish v. Nursing and Home Care, Inc., 248 Conn. 379 (1999); Fair v. People’s Savings Bank, 207 Conn. 535 (1988). See also, Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). The conclusion drawn by the trier in this matter was predicated on the weight and credibility he assigned to the evidence presented. Such determinations are within his purview and will not be disturbed unless the aforementioned tenets have been violated. Therefore, we conclude that the trial commissioner’s determination in this matter stands.

We therefore affirm the Commissioner’s May 2, 2002 Finding and Dismissal.

Commissioners Nancy A. Brouillet and Howard H. Belkin concur.

1 We note there is a typographical error in the May 2, 2002 Finding and Dismissal in Paragraph 4 where the trial commission states that the Voluntary Agreement reflects that the claimant reached maximum medical improvement as to her back on June 5, 1999. BACK TO TEXT