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CASE NO. 4966 CRB-5-05-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 29, 2006
CITY OF WATERBURY
The claimant was represented by Edward Dodd, Esq., Dodd, Lessack, Dalton & Dodd, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.
The respondents were represented by Margaret McGrail, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review from the June 14, 2005 Finding and Award of the Commissioner acting for the Fifth District was heard January 27, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.
JOHN A. MASTROPIETRO, CHAIRMAN. The instant appeal involves the question as to whether the claimant, a former Waterbury firefighter, is totally disabled and therefore entitled to benefits under § 31-307 C.G.S. The trial commissioner concluded after a formal hearing that he was. We find no error in that decision, and dismiss the appeal.
Many facts concerning this appeal are undisputed. The claimant was employed for almost thirty years as a firefighter. Findings, ¶ 2. He suffered a repetitive trauma injury to both lungs during the course of his employment in 1992. Findings, ¶ 1. In 1994, the parties reached a Voluntary Agreement regarding these injuries and the claimant received an award based on a 33% impairment to his respiratory system. Findings, ¶ 3. The claimant began treating with Dr. K. Jegathesan (a/k/a “Dr. Jega”) in 1993 for his chest disease. Findings, ¶ 7.
The present dispute occurred following a 2003 examination of the claimant by Dr. Jega in which he determined the claimant had a “Class 3 impairment.” Such an impairment medically restricts an employee to limited sedentary work which does not require much lifting or walking. Labored breathing can occur during usual and customary activities of daily living when one has a Class 3 impairment. Findings, ¶¶ 10-11. Dr. Jega summarized his findings in a September 26, 2003 letter which is in the record. Following that medical evaluation, the claimant sought § 31-307 benefits, representing that he was now totally disabled.
A formal hearing commenced February 25, 2004, and continued to May 26, 2004 and February 17, 2005, with the record closed April 18, 2005. At the Formal Hearing an expert witness, Albert Sabella, testified for the claimant stating that the claimant would be unable to sustain employment as his medical condition precluded him from sustaining work activity on a consistent and regular basis. Findings, ¶¶ 12-14. The respondent’s vocational expert, Ms. Kerry Quint, reached a different conclusion as to the claimant’s work capacity, determining he could perform such jobs as customer service person, sales clerk, police dispatcher, security guard, or telephone solicitor. She testified that there were available security guard posts at local firms. Findings, ¶¶ 15-19.
The trial commissioner issued a Finding and Award on June 14, 2005. He concluded that Mr. Sabella was a more persuasive witness than Ms. Quint, Findings, ¶ A and awarded the claimant benefits under § 31-307 Findings, ¶ I. Following a Motion to Correct by the respondents, which the trial commissioner denied, the respondents appealed. Their appeal is based on the theory that the commissioner erred in awarding benefits for total disability without a finding the claimant’s condition had deteriorated, and that there was “overwhelming evidence” that the claimant was not totally disabled.
The facts herein place this case within the scope of the Supreme Court’s holding in Osterlund v. State, 135 Conn. 498 (1949). In Osterlund, Chief Justice Maltbie determined that as a matter of law total incapacity does not mean only that the claimant cannot perform his prior occupation, or conversely does not mean a complete inability of the claimant to perform any labor whatsoever. The finding required for such an award is “not the employee’s inability to work at his customary calling but the destruction of his capacity to earn in that or any other occupation which he may reasonably pursue.” Id., 505. “A finding that the employee is able to work at some gainful occupation is not in all cases conclusive that he is not totally incapacitated. If though he can do some work, he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.” Id., 506-507.
In determining whether Osterlund applies in this case, we must substantially defer to the fact-finding role of the trial commissioner. The respondents seem to infer that the “law of the case” doctrine precludes further review of whether the claimant was totally disabled, since at previous hearings he had been awarded § 31-308(a) for partial incapacity. They cite Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001) for this proposition. We find this case relevant but distinguishable. The trial commissioner in Schreiber concluded that the claimant was presenting his case in a piecemeal fashion by belatedly raising issues that could have been raised in earlier hearings. He applied the theory of res judicata to bar consideration of matters which had been previously decided. It is apparent the trial commissioner in this case reached a different conclusion regarding the claimant’s situation. The “law of the case” doctrine does not deprive a commissioner of the ability to determine conditions have changed since the issuance of a prior ruling.
The key evidence herein is Dr. Jega’s September 26, 2003 letter. Respondents claim it stands for the proposition the claimant had a “Class 3 impairment” prior to the examination, and hence, was in a baseline medical condition that did not justify moving the claimant from a partial disability status to total disability status. This conclusion is based on parsing words and does not reflect the entire letter. Dr. Jega also states in this letter the claimant had not “attained maximum medical improvement” and “his pulmonary function has shown gradual deterioration.” We believe a claimant who can proffer medical evidence of a deteriorating condition can seek § 31-307 benefits even if they had not been awarded or sought previously. See Valletta v. State/DMR, 4543 CRB 5-02-6 (March 26, 2003).
The ability to seek total disability benefits is not equivalent to having them awarded. As we recently stated in Liano v. City of Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), “[w]hen a claimant asserts that she is totally incapacitated, the burden of proving such a disability falls on her.” Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000) citing Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 42 (1996). In this case, the claimant satisfied the trial commissioner he was totally disabled. “[I]t is the commissioner’s duty to evaluate the weight of the medical evidence and the credibility of witnesses.” D’Amico v. Dept. of Correction, 73 Conn. App 718, 725 (2002). Our scope of inquiry is limited to determining whether sufficient evidence was presented to sustain this award. See Kish v. Nursing and Home Care, 248 Conn. 379 (1999) and Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
In the present case, we have two separate expert witnesses testifying as to the employability of the claimant. The trial commissioner accepted the opinion of Mr. Sabella. Having interviewed the claimant he believed that notwithstanding Dr. Jega’s opinion that the claimant had a capacity for sedentary work, that the claimant lacked the “tenets of employability” regarding consistent work performance. At the May 26, 2004 formal hearing, Mr. Sabella specifically answered that he did not believe Mr. Dellacamera could consistently attend or maintain any type of work activity on a regular basis. See May 26, 2004 Transcript, p 63-64. He also testified the claimant lacked the stamina necessary for sustained sedentary work. Id., pp. 67-68.1
This testimony clearly makes precedent in Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998) dispositive of the issues herein. In Hidvegi, we held that a claimant may have a theoretical light duty capacity but find oneself unmarketable in the labor force due to one’s limitations. In both cases, a vocational expert testified the claimant was essentially unmarketable due to their physical limitations. We find no substantive difference between the evidence presented to the trial commissioner in this case and what was presented in Hidvegi. Therefore, we cannot find error for the trial commissioner reaching a similar conclusion.
The respondents also claim that our holding in Girasuolo v. West Haven, 4782 CRB 3-04-2 (April 13, 2005) compels a reversal of the trial commissioner since the claimant had not been performing a job search during the period he was seeking § 31-307 benefits. They also claim they presented “overwhelming evidence” that the claimant was not totally disabled. Neither argument is persuasive.
Girasuolo is unsupportive of the respondents’ arguments for a number of reasons. First, it is a case where the trial commissioner found the claimant was totally disabled and upheld the trial commissioner’s exclusive power to find that fact. Second, it cites the Hidvegi case as binding precedent and we cannot distinguish between the instant case and Hidvegi. Finally, that case did not turn, as respondents infer in their brief, on the issue of work searches. The opinion makes no reference to whether Mr. Girasuolo looked for work or not.
By citing Hidvegi as binding precedent the Girasuolo case actually stands for the diametrically opposite proposition, i.e. that work searches are not an absolute prerequisite to a § 31-307 award. Hidvegi cited our opinion in Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 1980 CRB 1-94-3 (August 30, 1995), that “a work search is not specifically required by the statute, as it is conceivable that a commissioner could find a claimant was willing to work, but that a job search would be utterly futile given the claimant’s limited abilities.” We followed this reasoning in Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002) (evidence of pain precluding performance of regular work sufficient to uphold § 31-307 award without job searches). Respondents point to no case since 1995 limiting the holding of Rose, although we have previously held the absence of a job search may be considered by the trial commissioner in reaching a decision regarding a claimant’s claim for § 31-307 benefits in Rapuano v. Standard Builders, Inc., 14 Conn. Workers’ Comp. Rev. Op. 290, 1975 CRB-5-94-2 (September 11, 1995). Therefore, this issue is a factual matter for the trial commissioner to resolve.
As to the weight of the evidence, this is a determination reserved to the trial commissioner. “In this sense “weight” means the qualitative value of the evidence presented. The trial commissioner decided the claimant presented the superior qualitative evidence.” Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006). Since the trial commissioner is “uniquely able to determine the credibility of both factual and expert witnesses, we are bound to uphold his findings.” Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006).2
We uphold the Finding and Award of June 14, 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 Stephen B. Delaney and Michelle D. Truglia concur in this opinion.
1 As noted in the Finding and Award, the respondents’ vocational expert reached a different conclusion. We must defer to the factual findings of the trial commissioner in such “dueling expert” cases. See Liano, supra, 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). BACK TO TEXT
2 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, supra, and D’Amico, supra, 728. BACK TO TEXT
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