Valletta v. State of Connecticut Department of Mental Retardation Southbury Training School

The claimant was represented by Laura Ondrush, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., 700 West Johnson Avenue, Cheshire, CT 06410.

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 June 13, 2002 Finding and Award 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 respondent employer appeals from the Commissioner acting for the Fifth District’s June 13, 2002 Finding and Award. In that Finding and Award the trial commissioner concluded that the claimant was entitled to temporary total disability benefits from November 23, 2001 forward. The respondent filed this appeal and presents for review whether the trial commissioner erred in finding and concluding that the claimant was entitled to temporary total benefits from November 23, 2001.

The pertinent facts in this matter are as follows. The claimant on July 5, 1985 sustained a compensable back injury while in the employ of the respondent. A Voluntary Agreement was executed and approved which reflected that claimant suffered a 45% permanent partial disability of her back. Claimant underwent two back surgeries as a result of her compensable injury. The first of these surgeries was performed February 1990 by Dr. Steven Torrey. Between her 1985 injury and her 1990 surgery the claimant returned to work at the Southbury Training School on several occasions. Prior to the claimant’s first surgery the claimant participated in a retraining program through the auspices of the Workers’ Compensation Rehabilitation Services division. As a result of that program the claimant was retrained as a phlebotomist.

After her retraining as a phlebotomist, the claimant worked for approximately a year and a half until her back condition deteriorated. In June 1993 she underwent a second back surgery performed by Dr. Torrey’s associate, Dr. Michael Karnasiewicz. As of November 26, 1993 it was determined that the claimant had a 45% permanent partial disability to her back.

The claimant contends that she did not have a good result following her second surgery and is often confined to her bed for periods of either a few days or a week due to her back condition. The claimant is a smoker. At the time of her injury she weighed 160 pounds and now weighs 260 pounds. Dr. Michael Murphy opined that the claimant is not a candidate for surgery due to her weight and smoking habit.

Following her second back surgery the claimant married and now has two children. Since February 2000 she has been in the care of a rheumatologist Dr. Thomas Greco. The claimant sees Dr. Greco at six to eight week intervals. Dr. Greco’s reports refer to claimant’s significant disc disease and her cycles of substantial back pain. Dr. Greco’s reports also note that the claimant takes a variety of medications to treat her pain.

In the proceedings before the trial commissioner, the claimant entered the deposition of Albert Sabella, a Vocational Rehabilitation Counselor into evidence. The trier noted that Mr. Sabella has worked in the rehabilitation field for over 25 years and has testified in various forums in Massachusetts, Rhode Island and Connecticut, including the Connecticut Workers’ Compensation Commission. Mr. Sabella interviewed the claimant and reviewed her various medical reports and records. Mr. Sabella noted claimant’s training as a phlebotomist is no longer on par with current technologies, and that the jobs for which she was qualified all required “sitting, standing, walking and lifting beyond her capacities.” Mr. Sabella opined the claimant is unemployable due to her physical infirmities and lack of transferable skills. See Findings, ¶¶ 35-37.

In his Finding and Award the commissioner also noted the claimant had received payment of benefits pursuant to § 31-308a for various periods and that an overpayment occurred in the payment of temporary total benefits and temporary partial benefits. The amount of the overpayment was $32,780.20. At the time of the trier’s June 13, 2002 Finding and Award the outstanding amount of the overpayment was reduced to $26, 495.12. Previous orders for benefits pursuant to § 31-308a reflected reductions were applied to the amount of the outstanding overpayment. The trial commissioner then concluded that the claimant was entitled to temporary total benefits as she was totally disabled from any occupation which she could reasonably pursue. The trier also ordered that the priority of payments would be to reduce the outstanding overpayment and then to pay the claimant or her attorney.

The respondent filed the instant appeal. The ultimate issue for consideration on appeal is whether the trial commissioner erred in concluding that the claimant was entitled to temporary total disability benefits from November 23, 2001. The respondent argues it filed a Form 36 regarding the claimant’s receipt of temporary total benefits and the Form 36 was approved February 1999. The respondent then posits that as the claimant was removed from total incapacity status via a Form 36 approved February 1999 and there has been no change in circumstances, pursuant to § 31-315, the commissioner erred in finding the claimant eligible for temporary total benefits.

The first question on review is respondent’s contention that there has been no change in claimant’s circumstances since the February 1999 Form 36 approval. That determination is to be answered by adjudicatory process with the trial commissioner acting as the fact finder. It is the trial commissioner who is vested with the authority to determine if a claimant has carried her burden of proof as to her entitlement to temporary total disability benefits. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001). That determination will not be disturbed unless the trier’s findings and conclusions are without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The respondent also cites Marone v. Waterbury, 244 Conn. 1, 17 (1998) as legal authority for its argument that the trier should not have determined that the claimant was entitled to total incapacity benefits. We think Marone has no bearing on the instant matter. In Marone, the claimant sought modification and recalculation of benefits paid pursuant to § 7-433c due to a change in the status of the law following the Supreme Court’s ruling in Szudora v. Fairfield, 214 Conn. 552 (1990). The ruling in Szudora expanded the calculation of benefits so as to include overtime payments. Thus, the issue presented in the appeal in Marone was whether the amount of claimant’s weekly compensation rate should be adjusted so as to be consistent with Szudora. The claimant in Marone was attempting to modify payments for a period where payments had already been made.

We could better follow the logic in respondent’s argument if the claimant were attempting to litigate the appropriateness of the Form 36 approved February 1999. However, that is not the case. The claimant is seeking temporary total benefits for a period following the period of time to which the Form 36 applied. Such claims are not uncommon in our Workers’ Compensation system. See e.g. Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42 (1996); Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002); Damelio v. Anaconda, Inc., 11 Conn. Workers’ Comp. Rev. Op. 221, 1363 CRD-5-91-12 (November 3, 1993).

In its prosecution of this appeal the respondent filed a Motion to Correct in which it asked the commissioner, inter alia, to amend his findings and include reference to Dr. Murphy’s February 28, 2000 report stating that the claimant would benefit from a weight reduction and self-directed exercise program. The trier granted the respondent’s Motion To Correct in part, but did not add the proposed correction suggesting that the claimant would benefit from a diet and exercise program and that surgery would likely improve her symptoms significantly. Claimant’s Exhibit A-2. As we have noted on other occasions a commissioner’s denial of a Motion to Correct will not be overturned where the correction sought does not compel a different legal outcome. Loffredo v. Wal-Mart Stores, Inc., 4369 CRB-5-01-2 (February 28, 2002); Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (November 1, 2001).

Ultimately, the respondent seeks to have us review the instant matter de novo. The respondent would have us reassess the weight and credibility the commissioner assigned to the various witnesses, particularly the testimony of the claimant’s vocational expert, Mr. Albert Sabella, and conclude in accordance with its argument. The function the respondent would have us perform would usurp the role of the trial commissioner. As an appellate body we do not engage in de novo review. The weight and credibility assigned to the evidence is a matter solely within the trial commissioner’s purview. Morneault v. D M & M Restaurants, Inc., 4389 CRB-3-01-5 (March 27, 2002)1.

We therefore affirm the Commissioner acting for the Fifth District’s June 13, 2002 Finding and Award.

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

1 We also note the respondent’s ultimate quest is to overturn the trial commissioner’s conclusion on the basis of the facts found. However, the record which the respondent presents fails to contain the transcript of the formal hearing proceeding held January 17, 2002. Our records reflect that the respondent did not order the transcript from the January 17, 2002 formal proceeding. The lack of a record of the January 17, 2002 formal hearing proceedings may not be fatal to our review of the respondent’s appeal in light of our analysis of the arguments presented and the record at hand. Additionally, we note that in the respondent’s Motion To Correct it states “By this motion the State designated the whole evidentiary record as being relevant on appeal and the file handled accordingly.” Yet the Petition for Review indicates that the respondent did not request a transcript for this appeal. Respondent’s statement in its Motion To Correct will not be deemed as a request to order the January 17, 2002 transcript. BACK TO TEXT