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Howard v. CVS Pharmacy, Inc.

CASE NO. 5063 CRB-2-06-3



APRIL 4, 2007











The claimant was represented by Robert B. Keville, Esq., Suisman, Shapiro, Wool, Brennan, Gray, & Greenberg, P.C., Two Union Plaza, P.O. Box 1591, New London, CT 06320.

The respondents were represented by Dominick C. Statile, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the February 27, 2006 Finding and Award of the Commissioner acting for the Second District was heard September 22, 2006 before a Compensation Review Board panel consisting of the Commission Chairman, John A. Mastropietro and Commissioners Stephen B. Delaney and Nancy E. Salerno.


JOHN A. MASTROPIETRO, CHAIRMAN. This appeal concerns whether the Commissioner acting for the Second District properly reopened a previously granted Form 36 and awarded the claimant temporary total disability benefits under § 31-307 C.G.S. The claimant produced evidence that notwithstanding a prior determination that she had a work capacity that she had been unable to find employment due to her disability. The respondents challenge the adequacy of this evidence. Upon review we believe the trial commissioner was presented with sufficient evidence to find the claimant totally disabled. Therefore, we uphold the trial commissioner and dismiss this appeal.

While the parties dispute whether the claimant qualifies for § 31-307 C.G.S. benefits there is general agreement concerning the facts. On June 21, 2001 the claimant suffered a compensable injury at the respondent’s pharmacy when a crate of merchandise fell on her cervical spine, thoracic spine and shoulder. She worked light duty until January 2002. On March 20, 2002 her treating physician, Dr. Paonessa, performed a diskectomy and fusion of her anterior cervical spine. The claimant returned briefly to light duty work in late 2002. She did not receive a full duty work authorization and has not worked since December 2002.

In late 2002 an issue developed concerning whether the claimant would benefit from surgery to her thoracic spine. Her treating physician recommended such surgery. The claimant was examined twice by the respondent’s examiner, Dr. Krompinger. Dr. Krompinger was not optimistic about the prospects for thoracic surgery and opined the claimant had a sedentary work capacity. On December 17, 2003 he opined the claimant was at maximum medical improvement with a 15% permanent partial disability rating of the cervical spine and a 10% permanent partial rating of her thoracic spine. The trial commissioner directed that a commissioner’s examination be held. The commissioner’s examiner, Dr. Karnasiewicz opined on August 12, 2003 that the claimant had sustained a compression fracture of the thoracic spine, but in the absence of myelopathy, he did not find surgery was indicated.

In 2004 the focus regarding the claimant’s condition shifted to whether the claimant had reached maximum medical improvement and if she had, did she retain a work capacity? Dr. Paonessa testified on a number of occasions as to her work capacity. On March 4, 2004 he stated he did not believe the claimant could return to any job except a part time, completely sedentary position. On May 11, 2004 he described such a job as involving no overhead lifting, no repetitive lifting or twisting, a lifting restriction of five pounds frequently or ten pounds occasionally and limited to four or five hours per day. In July 2004 he concluded that if she did not have thoracic surgery she was at maximum medical improvement with a part-time sedentary work capacity. On July 23, 2004 the respondents filed a Form 36 so as to discontinue temporary total disability benefits.

The trial commissioner found the claimant had reached maximum medical improvement and approved the Form 36 on September 2, 2004, effective July 23, 2004. The claimant then sought a formal hearing to demonstrate that she was indeed totally disabled. The formal hearing commenced on April 18, 2005 and was continued to sessions held on June 30, 2005; August 17, 2005 and completed December 14, 2005. At the formal hearing the claimant testified as to her level of pain, her medications, and the limitations her injury had placed on her activities around the home. She also testified to an unsuccessful job search. Two vocational experts testified. Estelle Hutchinson testified for the claimant and opined that it was unlikely the claimant could find work given her physical limitations and even if she had, her condition, especially her high level of pain, would make her an unreliable employee. She noted the claimant had only a ninth grade formal education and her work experience was primarily in physically demanding jobs. The respondent’s expert witness, Kerry Quint, reached a different conclusion and opined there were a number of jobs the claimant could perform within her limitations.

Following the conclusion of the formal hearing, the trial commissioner issued his Finding and Award on February 27, 2006. He determined that the claimant’s testimony was credible and that she had engaged in a diligent but unsuccessful job search. As there did not appear to be an employer willing to hire her, he determined that notwithstanding the finding of maximum medical improvement that the claimant was still totally disabled. As a result, the trial commissioner reopened the Form 36 granted July 23, 2004 and determined the claimant was totally disabled as of that date.

The respondents filed a Motion to Correct which was denied in its entirety. This appeal ensued and it is based on the argument that the evidence presented did not support the commissioner’s finding of total disability. Our review of the law and the evidence causes us to determine that the commissioner had sufficient grounds for the Finding and Award.

We recently had an opportunity to discuss the standard of review in a § 31-307 C.G.S. case. In Gombas v. Custom Air Systems, Inc., 4996 CRB-4-05-9 (September 20, 2006) we enunciated the following standard.

The trial commissioner is the finder of fact in a workers’ compensation case, and is the sole judge of evidentiary credibility. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). This board does not second-guess the inferences that a trier of fact has drawn from the evidence on review. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). If there is evidence in the record to support his or her findings, they will be upheld on appeal. Phaiah v. Danielson Curtin (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). Further, we will not disturb the trier’s legal conclusions unless they result from an incorrect application of the law to the facts, or an inference illegally or unreasonably drawn from them. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Fair, supra, 539-41.
A claimant is totally disabled under § 31-307 C.G.S. when he is unable, because of his injuries, to work at his customary calling or any other occupation which he might reasonably pursue. Rayhall v. Akim Co., 263 Conn. 328 (2003); Osterlund [v. State, 135 Conn. 498 (1949)], supra, 505. In Osterlund, our Supreme Court explained, “A finding that an employee is able to work at some gainful occupation within his reasonable capacities is not in all cases conclusive that he is not totally incapacitated. If, though he can do such work, his physical condition due to his injury is such that 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; see also, Covaleski v. Casual Corner, 4419 CRB-1-01-7 (June 27, 2002). The determination as to whether a claimant offers no marketable labor remains factual. See Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002).

In this matter the claimant offered two forms of evidence concerning her inability to obtain a job. She testified herself regarding her physical condition and a vocational expert testified on her behalf. On a substantive basis both the claimant and her expert witness offered testimony regarding the claimant’s difficulty in maintaining an activity for an extended duration. The claimant correctly points out that we found an inability to maintain the ‘“tenets of employability’ regarding consistent work performance” as sufficient to sustain an award for temporary total disability benefits in Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006). We believe Dellacamera is on point for two reasons. First, the trial commissioner herein found the claimant a credible witness regarding her physical limitations, including her level of pain and the unpredictability of when she will be able to work. Second, the claimant’s expert, Ms. Hutchinson, offered similar testimony on the question of whether the claimant would be a reliable employee to the expert testimony the claimant’s expert offered in Dellacamera. June 30, 2005 Transcript, pp. 11-16.1

The respondents challenge the adequacy of the claimant’s expert testimony herein, asserting the witness did not perform a sufficient vocational assessment of the claimant prior to testifying. We believe this goes to the weight of the evidence. Devanney, supra.2 We acknowledge the respondents offered expert testimony from Ms. Quint as to the claimant’s work capacity. We can infer the trial commissioner found her opinions less persuasive than Ms. Hutchinson and believe it was his prerogative to determine which expert to rely on in this instance.3

The second form of evidence proffered by the claimant was also relevant evidence regarding her employability. She testified to a diligent and unsuccessful job search. In Dellacamera we pointed out a job search is not an absolute requirement to obtaining § 31-307 C.G.S. benefits. It however does provide clear evidence as to whether the claimant has met the standard for total disability. In Osterlund, supra, the Supreme Court held “If, though he can do such work, his physical condition due to his injury is such that 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. The respondents argue that this is a result of the local economy in Eastern Connecticut. They offer no legal precedent or statutory provision wherein this is a consideration for the trial commissioner, and the record herein reflects an award based on the claimant’s physical health, not her community’s economic health.

The respondents raise a reasonable concern that an approved Form 36 establishing maximum medical improvement should not be reopened without substantial evidence. The situation herein is not unique, however. “Under our law, an individual may reach maximum medical improvement with a permanent partial disability, and still be temporarily totally disabled from working. McCurdy v. State, 227 Conn. 267-268 (1993);” McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007). We note that we previously have permitted a Form 36 to be reopened at a later hearing and “a trial commissioner is entitled to consider a broad range of issues at a subsequent formal hearing on a Form 36, including whether a claimant continues to be totally disabled.” Papa v. Jeffrey Norton Publishers, Inc., 4486 CRB-3-02-1 (February 25, 2003).

At the time the Form 36 was approved by the trial commissioner, the claimant had not performed a job search. Therefore, we find no error for the trial commissioner concluding that evidence of subsequent unsuccessful job searches and vocational testimony of limited employability was adequate evidence to find the claimant totally disabled therefore justifying reopening the Form 36.4

We affirm the Finding and Award and dismiss the appeal. To the extent interest may be due pursuant to § 31-301c(b), it is ordered herein.

Commissioners Stephen B. Delaney and Nancy E. Salerno concur in this opinion.

1 Respondents’ counsel criticizes the Commissioner’s finding of total disability as “there is no such medical evidence,” Respondents’ Brief, p. 14. In Dellacamera, supra, we upheld a finding of total disability based on vocational factors even when the medical evidence supported some sedentary work capacity. We also note the claimant’s treating physician placed rather stringent limitations on her work capacity and testified he wanted “to give her the option of going on a job search and seeing what would happen over time.” Claimant’s Exhibit E, July 13, 2004 Deposition, p. 69. BACK TO TEXT

2 Ms. Hutchinson explained her reasoning for not conducting such an assessment that it was unnecessary due to the claimant’s limited employability. She also challenged respondents’ evidence as based on physically demanding jobs in the local labor market. June 30, 2005 Transcript, pp. 17-19. BACK TO TEXT

3 Respondents cite Schenkel v. Richard Chevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004) as the appropriate standard of review for § 31-307 C.G.S. cases. We note in Schenkel we upheld the trial commissioner’s assessment of the evidence presented. We must extend similar deference to the trial commissioner in this case. BACK TO TEXT

4 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 v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT

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