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CASE NO. 5011 CRB-7-05-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 25, 2006
HONEY HILL CARE CENTER
ROYAL AND SUNALLIANCE
The claimant was represented by Daniel Benjamin, Esq., Benjamin & Gold, 350 Bedford Street, Suite 403, Stamford, CT 06901.
The respondents were represented by Joseph Passaretti, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review1 from the October 14, 2005 Finding and Order of the Commissioner acting for the Seventh District was heard April 28, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. This appeal concerns a Finding and Order which determined that the claimant was entitled to continued benefits under C.G.S. § 31-307 for temporary total disability. The respondents have appealed this decision. Upon review, we find we are unable to uphold the Finding and Order in its present form, and herein remand this matter to the trial commissioner for an articulation of the grounds he relied on in his decision.
This controversy involves whether a Form 36 should be approved. The claimant had been out on disability since May 15, 2000 as a result of a compensable back injury sustained when a patient kicked her and knocked her down. She had not returned to work as a nurse’s aide since the accident and has had a number of voluntary agreements issued regarding her injuries.
On June 15, 2004, Dr. Ronald Ripps performed an employer’s/respondent medical examination on the claimant at the direction of the respondents. He concluded the claimant had reached maximum medical improvement and that she had a sedentary work capacity. On or about June 6, 2004 the respondents issued a Form 36 to discontinue her temporary total disability payments stating the claimant had reached maximum medical improvement and had a work capacity. Counsel for the claimant filed an objection and the commissioner for the Seventh District held a formal hearing on whether the Form 36 should be granted.
At the hearing on February 3, 2005, the trial commissioner was presented with conflicting medical evidence. The claimant submitted medical reports from her treating physician, Silvia Knoploch, M.D. Claimant’s Exhibits A-B. The respondents submitted the respondent’s examiner’s report of Dr. Ripps and the medical report prepared by Dr. Mark Wilchinsky, who examined the claimant in October of 2004 at the direction of Commissioner Paoletta. Respondents’ Exhibits 1-2. The claimant, her son Billy Cassis, and Dr. Knoploch all testified at the hearing. Findings, ¶¶ 3-10; 15-17. The witnesses all testified to the claimant’s limitations. They disagreed with the medical reports which the respondents submitted, both of which concluded the claimant had a work capacity. Finding, ¶ 12. However, no vocational testimony was offered by either the claimant or the respondent.
The trial commissioner issued his Finding and Order on October 14, 2005. The trial commissioner concluded that the claimant was still temporarily totally disabled and denied the Form 36. In doing so, he stated he relied on the evidence offered by Dr. Knoploch and Dr. Wilchinsky. The respondents filed a Petition for Review, a Motion to Correct and a Motion for Articulation on October 26, 2005. On December 2, 2005, the trial commissioner granted two of the six proposed corrections. He responded to the Motion for Articulation by adding two words to the Finding and Order. This appeal ensued.
The respondents identified four reasons for appeal. We believe only one must be addressed at this juncture; the alleged failure of the trial commissioner to adequately respond to the respondents’ Motion for Articulation. Upon review, we agree with the respondents that the present findings do not constitute a sufficient basis for our board to perform appellate review.
The entire Finding and Order is based on the conclusions stated in Finding, ¶ A. “The medical opinions of Drs. Knoploch and Wilchinsky in effect keep the Claimant temporally totally disabled and are more persuasive than the opinion of Dr. Ronald Ripps.” We cannot second-guess the trial commissioner’s determination as to the relative credibility and materiality of conflicting medical testimony Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006). The issue here is the trial commissioner having found two doctors credible; one must examine their testimony to confirm the finding is in accordance with the testimony offered. “We must therefore review the Finding and Dismissal solely to ascertain if the facts found are supported by evidence.” Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006).
The problem we face is the two doctors do not offer consistent testimony on the issue of total disability. Dr. Wilchinsky’s October 22, 2004 report clearly delineates a number of limitations on the part of the claimant, but also concludes, “she would be capable of doing sedentary type work.” Respondents’ Exhibit 2. On the other hand, Dr. Knoploch’s notes reflect a conclusion that the claimant is totally disabled from work due to her chronic back pain syndrome and the consequent medications she took for pain management. Claimant’s Exhibit B. The opinions of the two doctors differ materially, yet the finding in question treated them as interchangeable.
“We have held that it is within the discretion of the trial commissioner to accept some, but not all, of a physician’s opinion.” Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006). The trial commissioner could have determined that he agreed with Dr. Wilchinsky regarding certain subordinate facts but found Dr. Knoploch more persuasive on the issue of total disability, but for an appellate body to make such an inference would amount to putting words in the trial commissioner’s mouth. We also believe the verbiage used that the doctor’s opinions “in effect keep the Claimant temporarily totally disabled” is sufficiently vague as to force us to speculate as to what factors led the trial commissioner to reach that conclusion.
We also find this Finding and Order seems to commingle the concepts of medical disability and vocational disability. Neither party submitted any expert testimony on vocational disability. We have stated that a vocational expert is not a requirement for every case where total disability is an issue. Barnett v. Harborview Manor, 3189 CRB-3-95-10 (February 27, 1997). In the absence of such evidence, we have made clear that a trial commissioner must discount statements made by a physician that opine on issues beyond that of medical opinions. Girasuolo v. City of West Haven, 4782 CRB-3-04-2 (April 13, 2005). The record is unclear whether the claimant was proceeding under an Osterlund v. State, 135 Conn. 498 (1949) theory that her labor was unmarketable or a reliance on her treating physician’s opinion that she was medically incapable of performing remunerative labor. The hearing notice for the February 3, 2005 formal hearing references § 31-296 C.G.S. and not § 31-307 C.G.S., leaving an open issue as to whether both parties were prepared to present an Osterlund argument at the hearing.
This creates an additional issue which we believe would benefit from an articulation of the rationale behind the commissioner’s Finding and Order. “‘An articulation may be necessary where the trial court fails completely to state any basis for its decision; or where the basis, although stated, is unclear.’ (citations omitted). State v. Wilson, 199 Conn. 417, 434 (1986). A Motion for Articulation should be granted when the basis of the commissioner’s conclusion is unclear. Chemero v. Westreco, Inc., 10 Conn. Workers’ Comp. Rev. Op. 142, 1081 CRD-7-90-7 (June 29, 1992).” Brown v. State/Department of Correction, 4609 CRB-1-03-1 (December 17, 2003), aff’d, 89 Conn. App. 47 (2005), cert. denied, 274 Conn. 914 (2005). While in Brown this board did not believe the facts warranted a remand for articulation, we believe the standard as defined in Brown for causing an articulation to occur has been met in this case.
This matter is herein remanded for additional findings, or in the alternative, an articulation of the present findings regarding the following issues, (1) which medical evidence the trial commissioner found persuasive and credible; and (2) whether the finding of total disability was based on a finding of medical disability or a finding of vocational disability.
Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur in this opinion.
1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT
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