Cerrito v. Logistec USA, Inc.

The claimant was represented by Joseph F. Trotta, Esq., 900 Chapel St., P.O. Box 802, New Haven, CT 06503.

The respondent employer and the insurer Crum & Forster were represented by Lawrence R. Pellett, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

The respondent Logistec USA, Inc., was also separately represented by Mark Oberlatz, Esq., Murphy & Beane, One Union Plaza, P.O. Box 590, New London, CT 06320.

This Petition for Review from the November 8, 2005 Finding and Award of the Commissioner acting for the Third District was heard May 19, 2006 before a Compensation Review Board panel consisting of Commissioners Donald H. Doyle, Jr., Nancy E. Salerno and Amado J. Vargas.

OPINION

DONALD H. DOYLE, JR., COMMISSIONER. The respondents have petitioned for review from the November 8, 2005 Finding and Award of the Commissioner acting for the Third District. They argue on appeal that the trier erred by denying their Forms 36 filed June 24, 2003 and September 27, 2004, by relying on the testimony of a particular psychologist, and by denying their Motion to Correct. We find no error, and affirm the trial commissioner’s decision.

The trial commissioner found the following facts. The claimant was struck in the face by a 4x4 wooden board during the course of his employment on November 10, 1998. This compensable injury resulted in a nasal bone fracture that required two surgeries. The claimant also began seeing a neurologist, Dr. Siegel, within a week of the injury. He reported “frequent generalized headaches associated with dizzy spells, lightheadedness, confusion, blurry vision, decreased smell, nausea, irritability, forgetfulness, trouble concentrating, shakiness and disequilibrium, with pain and stiffness in the neck and jaw.” Finding, ¶ 3. The concentration and memory concerns did not improve over the next several weeks, so Dr. Siegel referred the claimant to Dr. Hart, a clinical psychologist.

After testing the claimant, Dr. Hart issued a report on February 26, 1999. He concluded that the claimant’s injury left him suffering from a post-concussive syndrome, and that his attention and memory were inadequate to support any type of employment. He disabled the claimant until further evaluation in four or five months, and stated that if there was true frontal lobe impairment beyond that normally seen in mild closed head injury, the claimant’s prognosis for returning to work would be worse. On June 29, 1999, the claimant was retested, and Dr. Hart found that his condition had deteriorated. He suggested additional retesting in 18-24 months to determine if the claimant’s condition would improve, stabilize, or continue its decline. Dr. Hart saw the claimant at least nine times through October 11, 2001.

The respondents set up a series of medical and psychological examinations with Dr. Rubenstein, a psychiatrist, beginning on February 10, 2000. This 90-minute exam resulted in an inconclusive report. Dr. Rubenstein suspected that the claimant might be posing or malingering, but also thought it possible that the brain dysfunction was itself causing the behavior. He did not give any opinion within a reasonable degree of medical probability.

Dr. Grayson, a psychiatrist, saw the claimant for two hours on December 3, 2001, and prepared a 19-page report afterward. He diagnosed numerous conditions, including dementia due to head trauma, post-traumatic stress disorder, major depressive disorder, cocaine dependence (apparently in remission), borderline intellectual functioning, anti-social personality traits, and traumatic brain injury. He also considered it possible that the claimant was embellishing his symptoms, and recommended many additional medical procedures, further testing, and treatment with anti-depressants. In a June 23, 2003 supplement to that report, Dr. Grayson stated that the claimant’s credibility was too weak to elicit a reliable impression concerning his ability to work.

Dr. Cassens, a neuropsychologist, tested the claimant in May and December, 2002. She found severe depression, but also detected a lack of effort and probable malingering. She was also unprepared to state whether or not the claimant was disabled. Meanwhile, Dr. Druckemiller saw the claimant on October 12, 2001 and opined that he had a light duty work capacity strictly on a physical basis. He did not address the claimant’s psychological disability at all, which led the trier to disregard that opinion.

Based on the opinions of these medical examiners, the respondents filed a Form 36 on June 24, 2003, seeking to discontinue total disability benefits. As there was no report giving a work capacity, save that of Dr. Druckemiller, that Form 36 was denied both at the informal hearing level and at the formal hearing level. A second Form 36 was filed on September 27, 2004 asserting that the claimant had accepted employment with a company in Florida on July 26, 2004, and had been paid $3,279.00 through August 18, 2004, while simultaneously receiving workers’ compensation benefits. The claimant testified that he was so employed, but was fired because of a variety of reasons, including poor attendance, rudeness to customers, and leaving early because he felt ill.

The trial commissioner denied this Form 36 as well, ordering that the claimant continue to receive temporary total disability benefits less the monies earned between July 26 and August 18, 2004. He relied on the opinion of Dr. Hart, who had written a letter dated July 11, 2003 that addressed the other examiners’ reports. Dr. Hart noted that the claimant’s idiosyncratic behavior was observed by each doctor, and identified the emergence of a consistent picture that precluded the likelihood that the claimant was creating a deliberate and organized self-presentation. He stated that the claimant was cognitively incapable of accomplishing such a feat. Dr. Hart thought that much of the claimant’s depression stemmed from being unable to work, which was still the case. Clinically, he fit the picture of a person with pre-frontal cortical injury. Dr. Hart recommended the appointment of a conservator for the claimant.

Along with denying the Forms 36, the trier directed the respondents to pay for a psychiatric evaluation to determine an appropriate course of treatment for depression in the event that the claimant was not currently receiving psychiatric treatment. Following the issuance of the award, the trier also denied the respondents’ subsequent Motion to Correct in its entirety. The respondents have appealed both the Finding and Award and the denial of the Motion to Correct to this board. They also seek to admit additional evidence that the claimant had pleaded guilty to a pending drug possession charge during the interval between the second and third formal hearings, which information the claimant failed to disclose.

With regard to the Motion to Submit Additional Evidence, Admin. Reg. § 31-301-9 provides that this board may augment the record to include additional evidence that is material and which was not presented during earlier proceedings for good reason. The evidence in question includes a computer printout of information available on the Florida Department of Corrections website showing that the claimant was sentenced to 18 months probation on January 7, 2005 for possession of cocaine. The respondents’ submission also includes a copy of two pages of the November 22, 2004 formal hearing transcript, in which the claimant testified that the cocaine belonged to another person who fled his car at a police check point, and that he had pled not guilty in response to the arrest. The respondents fault the claimant for failing to disclose his subsequent conviction to opposing counsel or the trial commissioner, and seek to admit this evidence now.

The respondents have not demonstrated, however, that this evidence could not have otherwise been obtained had they simply inquired about it. Also, a trial commissioner is not bound by the ordinary rules of evidence. See § 31-298 C.G.S. Given the nature of the issue (the cause and nature of the claimant’s psychological state, and its effect on his work capacity) and the other evidence in the record (including testimony that the claimant had a history of cocaine and crack use during the mid-1990’s, and the acknowledgement of the 2004 arrest on the record), a recent conviction for drug possession is not clearly material to the outcome of the case. See Swaggerty v. Mattie’s Service Station, 3378 CRB-6-96-7 (February 3, 1998). Therefore, we deny the Motion to Submit Additional Evidence.

We begin our discussion of the merits of this appeal by enunciating our standard of review. Whether or not a claimant is totally disabled pursuant to § 31-307(a) is a factual question for the trial commissioner to resolve. Murray v. Mass Mutual Life Ins. Co., 4590 CRB-1-02-11 (November 20, 2003); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). A finding of total disability must be supported by competent evidence, the credibility of which the trial commissioner would have been entitled to accept or reject in his or her factfinding discretion. Id.; see also, Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 454-55 (2001).

In a case like this, which involves demonstrating that a claimant’s compensable injury has led to psychological problems that have rendered him unable to pursue gainful employment, it is vital that a finding of total disability be supported by medical evidence that establishes such a condition within a reasonable degree of certainty. D’Amico v. State/Dept. of Correction, 4287 CRB-5-00-9 (Aug. 3, 2001), aff’d, 73 Conn. App. 718 (2002), cert. denied, 262 Conn. 933 (2003), citing Dengler, supra, 449, 455. If such evidence is present in the record, the trial commissioner is entitled to rely on that evidence, and a finding of total disability may stand. Murray, supra; D’Amico, supra. It is not the appellate role of this board to second-guess the factual inferences that the trier has drawn regarding the credibility of the evidence. Instead, we must determine whether there is legally sufficient evidence in the record to support the trier’s findings, and whether the trier may have omitted material facts that are admitted and undisputed. Duddy, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001).

As the trier’s conclusion here was based on the opinion of Dr. Hart, we must determine whether his reports and testimony sufficiently established total disability through the dates of the formal hearings. As noted above, Dr. Hart saw the claimant numerous times between February 1999 and October 2001. The notes indicate at least twelve separate visits. Respondent’s Exhibit 2. The initial report by Dr. Hart relates the claimant’s description of his October 10, 1998 injury, which occurred when a crane operator set down a load too soon, causing the end of a 4x4 board to jackknife and strike him in the face. Dr. Hart surmised that the injury caused a significant alteration of consciousness in the claimant.

At the time of his first assessment by Dr. Hart, the claimant was experiencing a loss of energy, a change in his ability to socialize, irritable mood, and inability to focus or remember well enough to read. A history of drug and alcohol use was noted. Dr. Hart observed that the claimant’s attention would frequently drift and he would simply stare into space, with long reaction times needed to answer test questions. Various tests were administered to assess the claimant’s major cortical functions, including tests designed to measure change between premorbid function and post-concussive function. Tests indicated that the claimant’s general comprehension abilities had been seriously impaired, indicating damage to his frontal lobe. Severe deficiencies appeared in the results of the claimant’s verbal recall test, sequential memory test, attention-concentration tests, word fluency tests, and motor speed test, with below average results in most other tests.

Taking into account the claimant’s history of promising academic achievement in early school grades with subsequent decline, Dr. Hart concluded that earlier instances of head injury had mildly reduced the claimant’s neurocognitive function, with his recent injury seriously compromising the remaining memory function and attentional and mental control mechanisms. He believed that the claimant’s test scores were too low to support unsupervised employment. At that time, he stated, “If there truly is frontal lobe impairment . . . beyond that typically seen in mild CHI, the prognosis for the ability to resume and maintain employment is considerably worse.” Respondent’s Exhibit 2. He had asked the claimant’s parents to serve as mentors and oversee his activities, as the claimant appeared too compromised to use adequate comprehension and judgment skills.

The next report by Dr. Hart revealed increased memory loss, including stories of missed appointments, lost keys, confusion over dates, unstructured time management and disorganized personal affairs. The claimant was unable to handle the job of answering phones at his parents’ furniture store, and had begun to develop a stutter due to a worsening emotional state. Memory tests were reapplied and the claimant showed no ability to recall information that had been presented half an hour earlier. His attentional, mental tracking and cognitive inhibitory control tests also showed marked deterioration, as did tests of his motor speed. Dr. Hart thought that the claimant evinced serious impairment in these areas, and stated that his memory level would not support any kind of competitive employment. He described the claimant as presenting as “a tragic figure, desperate and frustrated, requiring catharsis and redirection,” and thought it unlikely that he would ever approach his former level of cognitive ability. October 8, 1999 report.

Similar results were noted on May 24, 2000, with treatment being designed to maintain some degree of stability, to improve the claimant’s coping techniques, and to avoid decompensation. Dr. Hart also noted major life disruption due to headaches and post-concussive irritability. After several more visits between August 2000 and October 2001, Dr. Hart noted that the claimant’s depression had gotten worse, with his tone becoming more lethargic and less explosive. Dr. Hart did not see the claimant in person after that.

His next report dated July 11, 2003 was in response to reports he had reviewed by Drs. Rubenstein, Grayson and Cassens. As discussed above, Dr. Hart noted that the claimant’s behavior during his visits with the other physicians was identical to that which he had observed during his period of treating the claimant. “Because this is a highly atypical presentation it has raised concerns regarding malingering or exaggeration of impairment. I think it is this atypicality, rather than specific indications of deliberate malingering, that has caused us all to wonder about [his] real efforts and real diagnosis.” Claimant’s Exhibit A. The consistency of his presentation suggested to Dr. Hart that “what you see is what is really there,” and he thought the claimant’s orbito-frontal and ventro-medial prefrontal brain areas were likely impaired. Id. He explained that the claimant’s inability to return to work and inconsistent effort in testing was also a major part of his depression, which was part of his postconcussive syndrome and was not likely to improve, thereby preventing substantial gainful employment. Dr. Hart concluded by stating, “While it is clear that [claimant] suffers from prior brain damage he still had the ability to work before the index accident. He could not have successfully worked at that time with the kind of memory, attentional, and behavioral impairments that he now displays. It should be noted that opiate abuse has little chronic effect upon memory when in remission.” Id.

At the September 22, 2004 formal hearing, Dr. Hart stated that, in his expert opinion as a licensed clinical psychologist, the claimant was incapable of maintaining employment during the period of his treatment. Transcript, pp. 15-16. He was asked in the form of a hypothetical question to assume that the claimant had worked for approximately two weeks during August 2004, and that he was terminated due to customer complaints about rudeness, carelessness, failing to dispense necessary information, and consistent absenteeism. Id., pp. 26-27. Dr. Hart said that such events would be consistent with his opinion about the claimant’s work capacity, in that he would not expect the claimant to be able to demonstrate consistent composure in dealing with the general public or with workplace colleagues, and that the claimant’s memory would not have improved enough for him to do routine repetitive tasks well enough to meet the standards of normal employment. Id., p. 27. He also explained, despite the claimant’s previously undisclosed history of violent behavior prior to the injury, he had become “tremendously irritable and explosive in a more consistent way” since the compensable injury, which explained his mood disturbance and inappropriate social interactions. Id., pp. 41-42. Any new information was consistent with the history of substance abuse the claimant had given him previously. “These things are pretty typical in people with significant histories of alcohol and drug abuse. It’s part of the picture.” Id., p. 45.

In light of this opinion, we disagree with the respondents’ assertion that it was “so unreasonable as to constitute legal error as a matter of law” for the trier to favor Dr. Hart’s testimony over that of the other treaters, who were much more skeptical of the claimant’s condition. Brief, p. 11. In denying the respondents’ initial Form 36, the trial commissioner was entitled to credit the opinion of Dr. Hart, which articulates a diagnosis that is explained with sufficient certainty to persuade a reasonable factfinder of its accuracy. No matter how clearly Dr. Cassens explained her belief that some of the claimant’s test results were invalid and indicated an intent to manipulate the result; see, e.g., Respondents’ Exhibit 10, pp. 15-16; the trier was not required to believe this opinion, or any other opinion, over that of Dr. Hart. Even though the claimant had not seen Dr. Hart since October 11, 2001, his follow-up reports and testimony did consider the findings and observations of other doctors who had seen the claimant more recently, and Dr. Hart offered an interpretation of their data that supported continuing total disability. This medical evidence was sufficient to demonstrate that the claimant remained unable to resume employment. See Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 454 (2001)(total incapacity is matter of continuing proof for period claimed); Brown v. State/Dept. of Mental Health and Addiction, 4053 CRB-2-99-5 (July 27, 2000), aff’d, 66 Conn. App. 282 (2001)(per curiam), cert. denied, 259 Conn. 913 (2002)(evidence inadequate to support award where over four years elapsed without updated medical opinion stating claimant continued to be totally disabled).

The denial of the September 27, 2004 Form 36 was also not legally erroneous. Dr. Hart explained that the claimant’s brief performance of a job in Florida, followed by his discharge for rudeness, absenteeism and poor job performance, was consistent with his prognosis that the claimant was not able to maintain gainful employment. This evidence provides support for the trier’s finding that the claimant continued to be totally disabled following his failed attempt at maintaining employment, as it addresses the claimant’s condition before and after his brief employment period. An unsuccessful attempt to perform a job need not signify the existence of a work capacity, thereby requiring the claimant to return to his treating physician for a new disability diagnosis in order to substantiate a new period of total incapacity. The trier was entitled to find Dr. Hart’s medical opinion credible on this matter. We do note, however, that the continued involvement of an evaluating physician will be necessary for the claimant to establish ongoing entitlement to total disability benefits, as the issue remains a matter of continuing proof. Papa v. Jeffrey Norton Publishers, Inc., 4486 CRB-3-02-1 (February 25, 2003); Brown, supra.

The trial commissioner’s decision is accordingly affirmed. Insofar as any benefits due remained unpaid pending appeal, we are required to award interest pursuant to § 31-301c(b) C.G.S.

Commissioner Nancy E. Salerno concurs.

AMADO J. VARGAS, COMMISSIONER, DISSENTING. I disagree with the continuation of the claimant’s total disability benefits beyond July 26, 2004. When this claimant returned to work for approximately three weeks beginning on that date, he ceased to be entitled to total disability benefits. Once a totally disabled claimant has returned to work, a Form 36 discontinuing those benefits should automatically be granted. After that point in time, the burden of proof must shift to the claimant to provide updated medical evidence proving that total disability should be resumed. This claimant has not introduced sufficient evidence to demonstrate that he was totally disabled after returning to work. Dr. Hart did not examine him personally after that date. Accordingly, I would approve the September 27, 2004 Form 36 as a matter of law.