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CASE NO. 4819 CRB-2-04-6
CASE NO. 4948 CRB-2-05-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 26, 2006
AMGRAPH PACKAGING, INC.
The claimant appeared pro se.
The respondents were represented by Byran L. LeClerc, Esq., Berchem, Moses & Devlin, Attorneys At Law, 75 Broad Street, Milford, CT 06460.
These Petitions for Review from the May 24, 2004 Finding & Award/Dismissal and the May 6, 2005 Finding & Award1 of the Commissioner acting for the Second District were heard before a Compensation Review Board panel on February 24, 2006 consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. We consider the aforementioned appeals in a tandem fashion as they involve the same parties, the same issues of law, relate to the same accident and, were heard by the same CRB panel at the same hearing. Following two different formal hearings, both the claimant and the respondents believe they received an erroneous decision from the trial commissioner. Upon our review, we believe both appeals rest on contesting the factual findings reached at the formal hearing. Accordingly, we dismiss both appeals.
We will address the appeal brought by the claimant, John Corcoran, first. Certain facts are not in dispute. On July 11, 2003 the claimant was employed in a light duty capacity by the respondent Amgraph Packaging, Inc. Findings, ¶¶ 5-6. He had sustained a compensable low back injury and hip injury on June 17, 2003 while working for the respondent. Findings, ¶ 2. On the morning of July 11, 2003, the claimant had clocked in for work but determined he needed to leave work during the business day. He left the premises without notifying a supervisor. Findings, ¶ 6. Upon his return to the facility he was terminated by the respondents’ human resources manager, Kathy Bouchey. Findings, ¶ 9. Exhibit A, Appellant’s Brief. Later that year the claimant’s treating physician, Dr. Halperin, began injection therapy on the claimant’s hip. Findings, ¶¶ 23-24. He determined the claimant was totally disabled from November 17, 2003 through December 30, 2003. Findings, ¶ 25. Claimant’s Exhibit B.
The issue on appeal is in regards to the period between the claimant’s termination of employment to the time in which the claimant was declared totally disabled. The claimant sought temporary partial disability benefits during this period which the trial commissioner denied in his Finding and Award/Dismissal of May 24, 2004. Upon review of the Finding and Award/Dismissal, the evidence presented at the hearing, and the legal arguments provided by the claimant, we conclude we lack the legal authority to reach a different outcome than the trial commissioner.
The trial commissioner applied the relevant statute in determining the claimant’s eligibility to receive partial disability benefits. The statute presumes the claimant will perform available light duty work. Sec. 31-308(a) provides:
If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, the injured employee shall be paid a weekly compensation equal to seventy-five per cent 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, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the amount he is able to earn after the injury, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, except that when (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 employee shall be paid his full weekly compensation subject to the provisions of this section
In reaching his decision, the trial commissioner determined that prior to July 11, 2003 the claimant had been performing light duty work provided by the respondents but failed to perform that work following that date as a result of his termination. As a matter of law, this scenario falls exactly along the lines of Levey v. Farrell Corp., 3649 CRB-4-97-7 (July 30, 1998). In Levey we held that, “[w]here a claimant is terminated for cause, the trier has the discretion to consider such a dismissal from employment tantamount to a refusal to perform a suitable light duty position for the purposes of § 31-308(a). If not for his own actions, the claimant in this case would have been able to earn the same salary he was earning before his injury, and would not have been entitled to temporary partial disability benefits.”2
The claimant disputes that he was terminated for cause, stating his termination letter of July 11, 2003 did not specify any misconduct leading to his dismissal. The respondents presented witnesses at the formal hearing on March 22, 2004 who testified that he was terminated for cause i.e. leaving the premises without clocking out. This factual dispute is reserved for the trial commissioner to determine Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000). We believe sufficient factual evidence was presented at the hearing to support his decision. Tovish v. Gerber Electronics, 32 Conn. App. 595, 603 (1993).
During oral argument, the claimant’s wife spoke on his behalf and offered an articulate exposition of why the appeal was brought, stating that the testimony of two key witnesses, who were employed by the respondent, Kathy Bouchey and Cheryl LeRoux should have been discounted by the trial commissioner as not credible. She believes Ms. Bouchey’s actions regarding the termination were biased as a result of a pending CHRO claim brought against her by the claimant which influenced her decisions.3 She said Ms. LeRoux’s testimony, as to the claimant’s physical activities in his yard, should have been discounted, as photographic evidence cast doubt on her claim that she observed the claimant’s activities from her parent’s house. While these matters are germane to the factual basis of the Finding and Award/Dismissal, they have no bearing in an appellate forum where we must defer to the findings of fact already reached.
The sifting and weighing of evidence is exclusively the function of the trier. “[N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Boccanfuso v. Conner, 89 Conn. App. 260, 292 (2005).
The appropriate forum in which to raise issues of bias, prejudice or incredulity on the part of a witness would have been before the trial commissioner. In his brief, the claimant states, “I believe Commissioner White thought he was hearing the truth, but he didn’t. 4” As noted, evidence of witness bias was not presented at the hearing. In addition, the appropriate vehicle to have challenged findings of facts an appellant believes are not founded in fact would be a Motion to Correct. The claimant did not file a Motion to Correct. As a result, pursuant to Soto-Velez v. Michael’s Chrysler-Plymouth, 4628 CRB-2-03-2 (February 3, 2004); Kelley v. Venezia Transport Services, 4184 CRB-2-00-2 (March 8, 2001); and Crochiere v. Board of Education, 227 Conn. 333, 347 (1993) we must accept the validity of the facts found by the trial commissioner and this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4.4
The trial commissioner made no error of law in denying the claimant’s bid for § 31-308(a) benefits from July 11, 2003 to November 17, 2003. This appeal, Case No. 4819 CRB-2-04-6, is dismissed and we turn our attention to the appeal brought by the respondents, Case No. 4948 CRB-2-05-5. The respondents take issue with a subsequent award by another trial commissioner awarding the claimant benefits under § 31-307 for a period of temporary total disability related to the June 17, 2003 compensable accident. Once again, this is essentially a factual issue and the result is the same: the trial commissioner shall be upheld.
The facts herein are largely not in dispute but for a difference in medical opinions. The claimant treated with Dr. Gabriel Abella on a number of occasions in the fall and winter of 2003. On December 30, 2003 Dr. Abella found that the claimant had a modified work capacity and referred him to Dr. Michael Halperin. Findings, ¶¶ 3-4. The exhibits before the trial commissioner indicate that Dr. Halperin and Dr. Abella were both part of the Norwich Orthopedic Group, P.C, as were other physicians who were requested to examine the claimant, Dr. Pasha and Dr. Balcom. Dr. Halperin examined the claimant on January 21, 2004 and ordered EMG testing with Dr. Pasha. He also suggested the claimant be examined by Dr. Balcom, who had previously operated on the claimant. Findings, ¶ 5. On February 24, 2004 the claimant was examined again by Dr, Halperin, who referred him to Dr. Abella for continued non-surgical management of his lower back condition. Findings, ¶ 6. On July 6, 2004 the claimant was examined by Dr. Halperin, who suggested a discography to ascertain surgical options. He was given a restricted work capacity after this visit. Findings, ¶¶ 7-8. On July 7, 2004 he was examined by Dr. Abella as part of a follow-up visit. Dr. Abella determined that due to his pain level the claimant “would not be gainfully employable. I will place him on temporary total disability.” July 7, 2004 note from Dr. Abella; Findings, ¶ 9.
The claimant did not treat following an August 6, 2004 discography performed at Backus Hospital until December 2, 2004 when he was examined by Dr. Halperin. Dr. Halperin discussed surgical options with the claimant following this examination and cleared the claimant for light duty work. Findings, ¶¶ 10-12.
The Commissioner acting for the Second District held a formal hearing regarding the claimant’s pursuit of temporary total disability benefits on April 7, 2005 and April 19, 2005. On May 6, 2005 he issued a Finding and Award determining that the testimony of the claimant was credible, (Findings, ¶ G), that the Norwich Orthopedic Group was an authorized treating physician(Findings, ¶ J), and on the issue of temporary total disability the commissioner found Dr. Abella more credible than Dr. Halperin. Findings, ¶ I. Following an award of § 31-307 benefits from July 7, 2004 to December 2, 2004 the respondents first filed a Motion to Correct the findings. As the respondents’ motion sought to remove the reliance on Dr. Abella’s opinion, the trial commissioner denied it. The respondents now seek this result on appeal.
The respondents’ brief focuses on a number of tangential issues which are not particularly relevant to the central issue. They claim the Motion to Correct should have been granted to conform to their view of the evidence.5 They also rely on the claimant’s failure to appear for a scheduled medical appointment on August 17, 2004 as a fact which should compel reversal. As counsel for the respondents advised the trial commissioner at the formal hearing that the claimant was in the custody of the Department of Correction, on and after August 13, 2004, April 7, 2005 Transcript, p. 20, this argument appears to be simply an effort to place this evidence out of context. The implication in the respondents’ brief is the claimant willfully failed to appear for treatment.6 The evidence demonstrates otherwise.
The respondents also argue that only Dr. Halperin should be deemed a treating physician. The trial commissioner found that the entire Norwich Orthopedic Group should be considered authorized treating physicians. Findings, ¶ J. The evidence supports the finding wherein it is apparent that the various physicians all treated the claimant at various times. See Claimant’s Exhibit A.
The central issue is whether the trial commissioner could rely on Dr. Abella’s July 7, 2004 opinion. What the respondents do not argue is whether Dr. Abella offered competent medical evidence on whether the claimant was totally disabled. He did offer such evidence and the trial commissioner relied on it. A review of our recent decision in Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) indicates he acted properly in doing so. “[I]t is the commissioner’s duty to evaluate the weight of the medical evidence and the credibility of witnesses.” Id., citing D’Amico v. Dept. of Correction, 73 Conn. App. 718, 725 (2002).
The trial commissioner performed that duty and concluded both the claimant and Dr. Abella were credible on the issue of total disability. Since determination of total disability is essentially a factual determination, this board cannot revisit those findings. See Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006), citing Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006) and Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006).
We therefore uphold the Finding and Award of May 6, 2005. Insofar as any benefits due the claimant remain unpaid pending appeal, interest is awarded as required by § 31-301c(b) C.G.S.
Commissioners Nancy E. Salerno and Ernie R. Walker concur in these opinions.
1 We note that extensions of time as well as postponements were granted during the pendency of these appeals. BACK TO TEXT
2 In Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006), we held it was a discretionary matter for a trial commissioner to determine whether termination from a light duty job precluded an award of partial disability benefits. Consequently, the trial commissioner could award such benefits in Lopez, notwithstanding the claimant’s termination, but had no obligation to award them following the termination of the claimant’s employment in this case. BACK TO TEXT
3 Ms. Bouchey was not called as a witness by either the claimant or the respondent at the March 22, 2004 formal hearing. If the claimant wanted the trial commissioner to consider whether the respondents had an improper motivation for denying this § 31-308(a) claim, he needed to provide such evidence on the record. As a result, the issues concerning the termination and Ms. Bouchey’s role were unchallenged. The claimant also did not challenge the testimony of Ms. LeRoux at the formal hearing regarding her eyewitness evidence that she saw him playing in his yard. BACK TO TEXT
4 Given the discretionary nature of a temporary disability award, even if the disputed testimony of Ms. LeRoux were stricken from the record and Ms. Bouchey’s alleged bias added to the record, we cannot presume that the claimant would have been granted such an award. As it is undisputed the claimant was terminated from a light duty job for an unauthorized absence, the respondents had a cognizable defense against payment of an award based on our precedent in Levey, supra. Moreover, as held in Dengler v. Special Attention Healthcare Svcs., Inc., 62 Conn. App. 440 (2001), “[i]t is well settled in workers’ compensation cases that the injured employee bears the burden of proof. . . .” BACK TO TEXT
5 Respondents claim it was error for the trial commissioner to reject its Motion to Correct. Since the Motion to Correct essentially sought to interpose the respondents’ conclusions as to the facts presented, we find no error. See Liano, infra, and D’Amico, infra, 728. We also reject the assertion that the trial commissioner lacked subordinate facts supportive of his finding. Respondents may wish to disregard the opinion of Dr. Abella. The trial commissioner did not, however. BACK TO TEXT
6 Respondents’ counsel mentions this fact four times in a seven page brief. No mention is made at all as to the claimant being in custody during the period in question. When a claimant fails to obtain treatment, it is up to the trial commissioner to determine whether that failure is reasonable. See § 31-294e C.G.S. and Barnett v. Harborview Manor, 3189 CRB-3-95-10 (February 27, 1997). We infer the trial commissioner considered correctional detention a reasonable explanation for the claimant not attending a scheduled medical examination. BACK TO TEXT
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