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CASE NO. 4697 CRB-7-03-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 10, 2004
RON K. THOMAS
TOWN OF GREENWICH
The claimant was represented by Andrew M. LaBella, Esq., 1111 Summer Street, Fifth Floor, Stamford, CT 06905.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the June 25, 2003 Finding and Dismissal of the Commissioner acting for the Seventh District was heard February 27, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr., and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 25, 2003 Finding and Dismissal of the Commissioner acting for the Seventh District. He contends on appeal that the trier erred by denying his claim for temporary total disability benefits or, alternatively, temporary partial disability benefits. We find no error, and affirm the trial commissioner’s decision.
The claimant was employed as a firefighter by the respondent Town of Greenwich on March 9, 2001 when he was diagnosed with hypertension. There is no dispute that this hypertension claim is compensable under § 7-433c C.G.S. The sole issue for determination by the trier was whether the claimant was entitled to benefits from June 25, 2001 through November 1, 2001, when the claimant returned to work. The trial commissioner found that, initially, the claimant was seen for his medical condition by Dr. Allen, and then by Dr. Raguso-Failla. On July 18, 2001, Dr. Raguso-Failla issued a document stating that the claimant was possibly capable of performing dispatching duties if his blood pressure remained controlled during work time, though he was not capable of returning to his normal job. Respondent’s Exhibit 2. According to the trier’s findings, Deputy Chief Puterbaugh stated at trial that the claimant had been offered a dispatching job in response to this assessment, but had refused to fill the position on the ground that the job would be too stressful. Findings, ¶ 6.
Because Dr. Raguso-Failla was moving his practice out of the state, he referred the claimant to Dr. Heiman, a cardiologist, who first saw the claimant on July 20, 2001, and diagnosed moderate hypertension. The trier noted Dr. Heiman’s deposition testimony that, as of July 26, 2001, the claimant had displayed a diastolic blood pressure reading of 110, precluding him from performing normal firefighting duties. See Respondent’s Exhibit 5, p. 10. However, Dr. Heiman did state that the claimant could do some other type of work, despite “aggressive cross-examination” by claimant’s counsel. Findings, ¶ 11. Dr. Heiman based this opinion on blood pressure readings over an extended period, as well as the claimant’s ability to participate in activities of daily living without having any problems. Respondent’s Exhibit 5, pp. 19-20.
The respondents also asked Dr. Dougherty to perform a records review. In his opinion, the claimant had at minimum a light duty capacity from June through November, based partly on the fact that the claimant could play golf and carry his own bag while walking the course, as well as on the results of a stress test from August 2001 that showed the claimant capable of completing a brisk walk up a 16% grade while exhibiting normal stress levels. Respondent’s Exhibit 4, pp. 11, 26. Dr. Dougherty thought the claimant capable of most desk or light-duty jobs, including dispatching firefighters, which he described as a minor-stress position given the claimant’s medical situation. Id., pp. 27-29. The trial commissioner also noted in his factual findings that the claimant started a theater company in October 2001 that required him to raise money, attend meetings, and teach acting, even though he was claiming to be totally disabled during that period.
Based on these factual findings, the trier concluded that the claimant was temporarily partially disabled from July 17, 2001 through November 1, 2001. He further concluded that the claimant’s failure to accept light-duty work for this time period prevents him from being eligible for benefits under § 31-308(a) C.G.S. The trial commissioner accordingly dismissed the instant disability claim, which ruling the claimant has appealed to this board.
The claimant argues that he was never informed by a doctor that he should return to work between June 5, 2001 and November 1, 2001, and that it was error for the trial commissioner to hold him retrospectively accountable for not having looked for light-duty employment. He further argues that there is insufficient evidence to support a finding that he was able to return to work. We begin by noting that it is the claimant’s burden to prove each element of his or her claim at trial, such as the existence of a compensable injury, or a reasonably probable relationship between such an injury and any alleged disability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). The trial commissioner is the finder of fact, and is entitled to make assessments of credibility and weight with respect to documentary evidence and the testimony of witnesses, even that which appears to be uncontradicted. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board may disturb factual findings on appeal only if they lack evidentiary support in the record, or if undisputed material facts have been omitted. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001).
Prior to the time period in question, the claimant had suffered a compensable knee injury unrelated to the instant claim, resulting in his being totally disabled through June 25, 2001. See December 3, 2002 Transcript, pp. 16-17. His quest to establish entitlement to disability benefits beyond that date as a result of hypertension required him to prove that he fulfilled the statutory requirements for temporary total disability set forth in § 31-307 C.G.S. or, alternately, the requirements for temporary partial disability set forth in § 31-308(a) C.G.S. The trial commissioner found that the reports and testimony of Dr. Heiman and Dr. Dougherty tended to show that, from a medical standpoint, the claimant was partially disabled from his hypertension from June 25, 2001 forward. This finding is readily supported by the testimony of Dr. Heiman and Dr. Dougherty, as cited above. Respondent’s Exhibits 4, 5. Additionally, it is not in conflict with the June 5, 2001 report of Dr. Raguso-Failla, which does not address the possibility of light-duty employment, saying only that the claimant “cannot return to work until his blood pressure is better controlled.” Claimant’s Exhibit A. The trial commissioner was not required to presume in this circumstance that the claimant was, at minimum, entitled to total disability benefits until the date of Dr. Raguso-Failla’s July 18, 2001 note.
Under § 31-308(a), a claimant may collect weekly temporary partial disability benefits equal to seventy-five percent of the difference between the “wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury” and “the amount he is able to earn after the injury.” This may amount to full weekly compensation where “(1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available.” The statute also provides that, if an employer procures a job for an injured employee that is suitable to his work capacity, the wages therein offered shall be construed as the claimant’s earning capacity during that employment period.
Though no one method of demonstrating entitlement to benefits, such as work searches, is statutorily mandated; Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996); it is necessary as a practical matter that a claimant establish an earning capacity in order to prove wage loss. In most cases that do not rely on the expert opinion of a vocational specialist, this is done in one of several ways: an employee may obtain light-duty employment that can serve as a basis for gauging the amount that he is able to earn after the compensable injury; Johnston v. Thames Permacrete Corp., 15 Conn. Workers’ Comp. Rev. Op. 402, 2278 CRB-2-95-2 (August 16, 1996); he may be offered light-duty employment that serves as a barometer for earning capacity under § 31-308(a); Levey v. Farrel Corp., 3649 CRB-4-97-7 (July 30, 1998); or he may demonstrate in some way that, though he is willing to perform restricted work, no suitable employment is available in the area. Murray v. Mass Mutual Life Ins. Co., 4590 CRB-1-02-11 (November 20, 2003); Baldino v. Corcoran, 4275 CRB-4-00-8 (July 23, 2001). Where a claimant is in fact offered appropriate light-duty work at his former rate of pay, a refusal to perform such work results in a loss of entitlement to § 31-308(a) benefits. Levey, supra.
The claimant’s appellate brief contains language asserting that the respondents did not prove that the claimant was offered light-duty work, and that they should be faulted for failing to do so. See, e.g., Claimant’s Brief, p. 10. Before we delve into the specifics of this argument, it is important for us to clarify a preliminary point. As the individual seeking benefits, the claimant maintained the initial burden of proving entitlement to relief under § 31-308(a), rather than it being the respondents’ burden to disprove his eligibility for benefits by offering medical evidence in defense of the claim. Baldino, supra; Christman v. State/Dept. of Correction, 4134 CRB-1-99-10 (October 16, 2000). It was up to the trial commissioner to determine as an issue of fact whether the claimant met that burden, thereby establishing statutory entitlement to compensation. Baldino, supra.
Here, the trial commissioner found that the claimant had been offered the light-duty position of dispatcher, but had refused to accept it. The claimant challenges this finding as being unsupported by the evidence. Our review shows that there was an equivocal quality to much of the testimony regarding the offer to the claimant of the dispatching job and his awareness of being eligible for light duty, which leaves it subject to more than one possible inference. In such circumstances, it is not the place of this board to substitute its own inferences for those of the trial commissioner. Six v. Thomas O’Connor & Co., 235 Conn. 790, 799 (1996); Duddy, supra.
For example, Chief Puterbaugh answered “yes” when asked by the respondents’ attorney whether light-duty work was made available to the claimant, and stated that the job offered to him was “fire dispatch.” February 13, 2003 Transcript, p. 14. He believed a phone call had been made to the claimant regarding this dispatch work, and added that he would have been the one to make this phone call. Id., p. 16. When asked if he recalled whether the claimant accepted this job, Puterbaugh answered, “I don’t believe he did.” Id. He then explained that other light-duty jobs were available at the fire department as well, such as administrative work and data entry. Id., p. 18. Yet, when the commissioner asked him if the claimant had refused to act as a dispatcher, Puterbaugh couldn’t quite say that the claimant had refused; rather, his recollection was that the claimant didn’t show up for the job. Id., p. 18. He was also unsure whether anyone else had spoken to the claimant regarding other light-duty jobs, though Puterbaugh was able to say that he had no memory of having done so himself. Id., p. 19. In fact, he was unable to recall the specifics of any conversation about light-duty work with the claimant; he simply had a general recollection that a phone call had been made. Id., pp. 42-43. Still, an offer of light-duty dispatching work would have been a consistent response to Dr. Raguso-Failla’s July 18, 2001 medical report, as found by the trier.
The claimant, meanwhile, did not think himself capable of performing the dispatching job during his time away from work, due to its complexity and stressfulness. December 3, 2002 Transcript, pp. 28-29. Indeed, he thought himself capable of no work at all due to the effects of his medication. Id., p. 31. In the July 18, 2001 report by Dr. Raguso-Failla cited by the trial commissioner in ¶ 5 of his findings, the doctor checked the “yes” box next to the question “is employee able to perform work of any kind,” and added that dispatch work might be possible if the claimant’s blood pressure remained under control during work hours. Respondents’ Exhibit 2. The claimant said that he had never seen that note before trial, and could not specifically recall whether he had asked the doctor to prepare an out-of-work slip during his visit on that date. December 3, 2002 Transcript, p. 54. He testified only that his pattern of conduct was to obtain an out-of-work note whenever he saw a doctor. Id., p. 55-56. He also represented that, in previous instances when he had been out of work due to workplace accidents, he would obtain notes from doctors instructing him to stay out of work, and would not return to work until he had been cleared to do so. Id., pp. 79-81.
The claimant could not recall whether he had spoken to anyone from the fire department regarding a possible return to dispatch work, though he said that he was “pretty sure [he] probably talked to the chief.” Id., p. 86. Though he had no memory of their conversation, he stated that he was sure he wouldn’t have turned down a request by the chief to return to work as a dispatcher. Id., pp. 86-87. He immediately qualified that testimony by adding, “I don’t remember if he offered me it at that time. I don’t remember if he did, or not. I don’t want to say yes, or say no, and be wrong.” Id., p. 87. The claimant also testified that he and some others had started a small nonprofit theater company in October of 2001, and that this initially entailed their gathering at private homes during certain evenings to discuss organizational issues such as fundraising, casting, and obtaining access to a theater. Id., pp. 67-71. The trial commissioner noted this activity in his findings, observing that the claimant had begun his involvement in this company while he was still alleging that he was totally disabled.
The trial commissioner possessed the discretion to decide how much weight to place on the testimony that was provided by these witnesses. Some uncertainty was inherent in the testimony of both the claimant and Chief Puterbaugh, in particular their common difficulty in recalling specific conversations regarding an offer of light-duty employment. There was also doubt regarding the claimant’s receipt of “out-of-work” slips from his doctor and the meaning of those slips, particularly given the later opinions of Drs. Heiman and Dougherty stating that the claimant was capable of selected work.
The trial commissioner was not required to resolve these evidentiary ambiguities in the claimant’s favor by excusing him from inquiring into light-duty work during his period of temporary partial disability, and by effectively penalizing the respondents for insufficiently disproving that the claimant had a diminished earning capacity. See Richardson v. Bic Corp., 4413 CRB-3-01-7 (August 5, 2002)(claimant assumed that she could not work prior to surgery, but was later found to have had a light duty capacity during that time, thus requiring earning capacity to be established before benefits could be awarded). The parties had not reached a voluntary agreement with regard to total or partial disability under § 31-296 C.G.S., and the claimant was not legally entitled to assume entitlement to any such benefits in the absence of such an accord. Because the trier permissibly inferred from the evidence and testimony that the statements of Chief Puterbaugh and the July 18, 2001 report of Dr. Raguso-Failla were sufficient to establish that the claimant had been offered suitable light-duty work, he did not err in concluding that the claimant was legally accountable for not having accepted such work. Thus, he did not err by declining to award temporary partial disability benefits from June 25, 2001 through November 1, 2001.
The trial commissioner’s decision is accordingly affirmed.
Commissioners A. Thomas White, Jr., and Charles F. Senich concur.
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