CASE NO. 5092 CRB-4-06-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 16, 2007
CITY OF BRIDGEPORT
The claimant appeared pro se on appeal.
The respondent employer was represented by Michael Finn, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review from the May 3, 2006 Finding and Dismissal of the Commissioner acting for the Fourth District was heard November 17, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and George A. Waldron.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the May 3, 2006 Finding and Dismissal of the Commissioner acting for the Fourth District. She contends on appeal that the commissioner erred by dismissing her claim for total disability benefits from May 19, 2003 forward. We find no errors of law on appeal, and affirm the decision of the trial commissioner.
The trial commissioner made the following factual findings in his decision. She found that the claimant suffered an injury to her lumbar spine on October 6, 1998, while she was in the course of her employment with the respondent City of Bridgeport. She had lumbar decompression surgery at two levels on October 22, 1999, and was subsequently hospitalized with a staph infection that required another incision. A voluntary agreement was approved on December 19, 2001, assigning the claimant a 25% impairment rating of her lumbar spine. The respondent has paid the claimant permanency benefits under § 31-308(b) and post-specific benefits under § 31-308a. The claimant now seeks benefits for total disability, claiming entitlement based on the opinion of her treating physician, Dr. Carolan, and in the alternative, that any sedentary, part-time work capacity she might have on paper is unmarketable in the economy because of her physical limitations, rendering her totally disabled under the doctrine articulated in Osterlund v. State, 135 Conn. 498 (1949).
The claimant was 62 years old at the time of her testimony on July 12, 2005. She has an Associate’s Degree in Early Childhood Development, and had worked 14 years as a math tutor for the respondent. She had been fond of her teaching work. She testified that she is able to drive, fix her breakfast each day, do occasional light grocery shopping using a carriage for support, attend church on Sundays, operate a computer and access the internet, and use the phone, VCR, and DVD player. She had performed job searches seeking secretarial employment or work with children, but had not looked for a job within the year prior to the formal hearing. She stated that her back pain keeps her from sleeping through the night, and sometimes prevents her from standing without help. She requires 4-5 minutes to descend the stairs from her second floor home, and must lie down twice daily with frequent changes of position. She testified that she takes Percocet nearly every day, several times per day, and added that her Flexeril medication makes her tired.
Dr. Carolan opined that the claimant suffers from significant degenerative arthritis in her back, resulting from her previous surgeries and immobility caused by degenerative changes. He suggested that she use a cane and a walker, and the Percocet he prescribed is a narcotic pain medication not recommended for use in a work setting. He concluded that the claimant is not capable of any type of work. Dr. Becker, a commissioner’s examiner, opined that the claimant had a 20% permanent partial disability and “at least a sedentary work capacity part-time.” Findings, ¶ 19. He disagreed that the claimant would have impaired concentration because of her pain or because of her medication use.
James Cohen, a vocational rehabilitation specialist, thought that the claimant was unemployable even if she possessed a sedentary, part-time work capacity from a medical standpoint. In his opinion, she was unable to be part of the work force considering her test results, transferable skills, medical restrictions, and her need for accommodations and medications. David Soja, a vocational specialist retained by the respondents, determined that the claimant was employable part-time, based on testing that showed she was intelligent and had transferable skills and an ability to adapt. He listed several jobs she could perform, including companion, tutor, receptionist, fund raiser, parking lot attendant, meal checker, ticket taker, and security surveillance monitor.
The trial commissioner found that Dr. Becker’s opinion favoring a part-time sedentary work capacity was more credible than Dr. Carolan’s pronouncement that the claimant was totally disabled. She further found that Mr. Soja’s opinion regarding transferable skills was also persuasive, and concluded that the claimant was not permanently and totally disabled under the Osterlund doctrine.1 The trier thus dismissed the total disability claim, which decision the claimant has appealed.
First, we address the respondent’s two Motions to Dismiss. Administrative Regulation § 31-301-2 requires an appealing party to file reasons of appeal within ten days after the filing of the petition for review. The respondent filed a motion on June 26, 2006, asserting that the claimant did not file reasons of appeal, and requested dismissal of the appeal. The respondent also filed a Motion to Dismiss dated October 11, 2006, in which it contended that the claimant had yet to set forth the grounds for her appeal, and objected that she had neither filed a brief in accordance with this board’s briefing schedule, nor had she sought an extension of time to file her brief.
The claimant is appearing pro se in this matter. She filed a letter with this board on May 25, 2006, seven days after her petition for review was received. The letter begins “Here is my statement of reasons for the appeal,” but it is not formatted as a list of grounds for appeal in the manner customary to this forum. However, Admin. Reg. § 31-301-2 does not demand that any one form be followed, and it is the policy of Connecticut courts and this board to accommodate pro se claimants as much as possible by liberally construing procedural rules where doing so does not interfere with the rights of other parties. Ferrin v. Glen Orne Leasing/Webster Trucking, 4802 CRB-8-04-4 (March 28, 2005), citing Vanguard Engineering, Inc. v. Anderson, 83 Conn. App. 62, 65 (2004). Within the body of her letter, the claimant objects that the opinions of the respondent’s doctors, who saw her “twice maybe three times in six and a half years,” were credited over the opinion of her treating physician on the issue of part-time work capacity. The claimant explains the severity of her condition and asserts that it prevents her from going back to work. These statements give enough information to provide a basis for this appeal, and we construe the claimant’s letter as her Reasons of Appeal. Carroll v. Flattery’s Landscaping, Inc., 4839 CRB-1-04-8 (June 29, 2005); Ferrin, supra.
As for the claimant’s untimely brief, this board has discretion to dismiss an appeal for failure to prosecute with due diligence, which includes the failure of a party to file a brief on time. Reaves v. Brownstone Construction, 3930 CRB-4-98-11 (November 30, 1999). It is especially important that the appealing party provide a brief, so that this board and the other parties understand the grounds for the appeal. Here, the claimant filed a brief on October 20, 2006, 15 days after her brief was due according to this board’s briefing schedule. This delay may have caused the respondent some prejudice, as it filed its own brief on October 11, 2006 without having first seen the claimant’s appellate arguments. However, there are no new theories of defense raised by the claimant’s brief, and the respondent did not ask to file an amended response. Thus, any prejudice was apparently insignificant. Given that this pro se claimant has filed reasons of appeal and attended oral argument, we will not dismiss her appeal for failure to prosecute with due diligence. See Schilling v. New Departure-Hyatt Division, 3290 CRB-6-96-3 (August 4, 1997)(CRB declined to dismiss appeal where claimant’s brief was filed 15 days late and no prejudice was demonstrated).
Next, we will explain the role of the Compensation Review Board in reviewing a trial commissioner’s decision. In a disputed workers’ compensation case, it is the job of the trial commissioner to try the facts. The commissioner listens to the testimony of the parties, reviews the evidence submitted at the formal hearing, and then decides what evidence is persuasive, and which of the parties’ arguments are the most believable. 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). The only individual with the power to judge the weight of evidence is the trial commissioner. A commissioner does not have to believe one doctor over another doctor, or one witness over another witness, and the commissioner can decide that a medical opinion or a witness’ explanation of events is unreliable, even if there is no evidence in the record that directly contradicts that testimony. Id.; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Also, a trier of fact is entitled to accept all, part or none of a doctor’s opinion; Tartaglino, supra; Gillis v. White Oak Corp., 49 Conn. App. 630, 638 (1998); as long as the opinions the trier relies on are expressed with a reasonable degree of medical probability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Duddy, supra.
When a decision is appealed to this board, we do not have the power to retry the case by second-guessing the trier’s decisions as to which evidence was more believable, as long as the commissioner has not relied on evidence that is legally incompetent. Duddy, supra; Pallotto, supra. Our role is to review the findings to make sure there is evidence in the record to support them, and to determine whether the trier has committed error by failing to include in the findings undisputed material facts. Duddy, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). We also review the legal conclusions to make sure that the law has been interpreted and applied correctly, and that the legal conclusions are consistent with the factual findings. Tracy v. Scherwitzky Gutter Co., 279 Conn. 265, 272 (2006). Thus, the claimant’s appeal is not a second chance to prove her workers’ compensation case. It is a request for review of the original Finding and Dismissal in the event the trial commissioner has made a legal error that affected her ruling. Duddy, supra; Warren, supra.
The claimant’s written and oral arguments address the trial commissioner’s conclusion that she was not totally disabled. The claimant contends that she continues to experience pain to a degree that prevents her from working, taking into account her need for medication and other accommodations. She challenges Dr. Becker’s right to give an opinion as to how she would be affected by Percocet and Flexeril. She also brings up Dr. Cohen’s statement that her need for medication would cause headaches, fatigue, dizziness and drowsiness, which could endanger her or others at the workplace. The trial commissioner mentioned this statement in ¶ 24 of her factual findings. Based on these factors, the claimant maintains that she was not employable during the period of her claimed total disability.2
First, we confirm that the trial commissioner was within her rights to rely on the opinion of Dr. Becker as to the claimant’s work capacity. Under § 31-294f(a) C.G.S., an employer has the right to request that a claimant submit to an examination by a practicing physician in order to evaluate the nature of an injury and the resulting incapacity. Such examinations are part of the legal process because, in order for the process to be fair, an employer in a workers’ compensation proceeding must have the right to offer its own evidence in response to the evidence offered by a claimant. See Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 740-41 (2001). As long as the respondent’s expert is a qualified physician who has stated his or her medical opinion in a way that shows the doctor was reasonably certain as to its accuracy, the commissioner has the authority to place greater weight on that opinion than on the opinion of the claimant’s treating physician. Murchison, supra; Capezzali v. Bridgeport, 4858 CRB-4-04-9 (September 7, 2005); Carrozelli v. Bridgeport, 3489 CRB-4-96-12 (March 6, 1998).
We are aware Dr. Carolan testified that the claimant was completely unable to work because of her pain. Claimant’s Exhibit A, pp. 11, 14. He explained that sedentary jobs requiring use of the hands and shoulders would cause the claimant similar problems to jobs in which she had to stand, because the vertical position of the back and the loading of weight on the spine is what triggers her pain, and the claimant would still need to lie down during the day to relieve that pain. Id., pp. 12, 22. He also said that Percocet, a narcotic, can be addictive, with side effects of light-headedness, nausea and vomiting, and is not recommended for use in a work environment. Id., p. 13. On cross-examination, Dr. Carolan cautiously supposed that the claimant might be able to work in an ideal circumstance, where she could control the hours she worked and the amount of sitting or standing that she did. Id., p. 29. The hypothetical situations he was willing to entertain were jobs the claimant could perform lying down. Id., pp. 29-30.
Dr. Becker, meanwhile, identified himself as an orthopedic surgeon who had examined the claimant twice in the past, and had reviewed medical records prior to examining her. Respondent’s Exhibit A, p. 6. He stated that the claimant would be employable in a sedentary capacity on a part-time basis. Id., p. 10. He thought the claimant could handle lifting five to ten pounds occasionally, with frequent changes in body position. He observed that the claimant had exhibited two behavior patterns that were consistent with a psychological origin for pain instead of a physical cause, which suggested some symptom amplification, and he also thought that psychological factors were affecting the claimant’s ability to return to work. Id., pp. 14-15, 18. He singled out the claimant’s use of a cane and a walker as an example of a psychological reaction, as neither of those devices actually takes weight off the spine. Id., pp. 21-22. Dr. Becker identified several jobs that he thought the claimant could do as long as she was able to change her position as needed, including computer work, security camera monitoring, and telemarketing. Id., p. 15. He did not think that the claimant would have an impaired concentration from her pain or her medications. Id., p. 17.
The opinion of Dr. Becker is stated with clarity, and it offers reasons why Dr. Becker came to the conclusions he did. We cannot say on review that the trial commissioner committed error by relying on that opinion over the opinion of Dr. Carolan. Legally, the trier had the power to make that choice. In our system, it is presumed that a physician such as Dr. Becker has the necessary professional expertise to give an opinion as to how a claimant will react to pain medication. We rely on such medical opinions to assess a claimant’s medical condition, and her capacity to perform work. Laliberte v. United Security, Inc., 261 Conn. 181, 199 (2002)(entitlement to total disability benefits is based on medical condition creating inability to work.
Second, the claimant also points out Dr. Cohen’s statement that her medications would cause headaches, fatigue and drowsiness that could endanger her or others at the workplace. In his testimony, Dr. Cohen stated that the claimant’s ability to perform ordinary sedentary work was limited by her medications and by her need to sit down and stand up frequently. He thought that the medications would impact her concentration and focus, and opined that she would not pass a drug test. October 11, 2005 Transcript, p. 33. He also opined that the claimant would not be able to find work, given her age, her list of disabilities, and to some extent her educational training. Id., pp. 27-28, 39-40.
The trial commissioner was not required to rely on that opinion, and did not do so. Instead, she relied on the opinion of Mr. Soja, who had seen the claimant twice for a total of approximately six hours, and talked about a number of positive aspects concerning the claimant’s employability, including her teaching skills, her ability to interact with people and organize information, her general clerical ability, her capacity to learn, her concentration, and her manual speed and dexterity. Id., pp. 57-59. Mr. Soja stated that he had no doubt that the claimant was employable part-time, as she presented well and had put forth good effort in testing. Id., p. 60. For example, he believed that she was still capable of tutoring work, perhaps with an after-school program for children who needed assistance in math; Id., p. 61; or as a receptionist in a religious setting, which would blend the claimant’s interest in religion with her physical capacity; Id., p. 62; or as a fundraiser for the Red Cross. Id., p. 63. He noted that there were a number of positions in the job market that the claimant could perform, and that she would in fact be a good candidate for training so that she could earn higher wages. Id., pp. 63-66.
With regard to her use of medications, Mr. Soja observed the claimant with a specific focus on her fatigue level and attention span. Id., p. 61. He tested the claimant’s memory, and found that it was average or better. Id. He did not see any signs of her falling asleep, yawning, struggling to maintain her balance, or performing activities typical of a person who is intoxicated or overmedicated or experiencing side effects. Id. He characterized her as articulate, responsive and attentive. Id. He stated that the claimant’s medications had not affected her ability to attend, concentrate, and perform work, and that she could easily work alongside others who were not disabled. Id., p. 65. Mr. Soja also explained that, even though the claimant may have bad days where she cannot attend work, there are “casual employment” positions in the job market “flexible enough so that if one couldn’t return to work or show up at work every single day, they would have the option to pass on a call of that day and then be called the next time. It happens very frequently in part-time positions.” Id., 73. He further stated that, with regard to drug testing, applicants who are forthcoming about the medications they are taking should not experience problems passing such tests. Id., p. 71.
This testimony clearly explains Mr. Soja’s point of view that the claimant had marketable labor to offer, and that she could, with a reasonably diligent effort, find a job. The trial commissioner was within her authority to rely on this testimony in her findings. It is not within the power of this review board to change that decision here on appeal. Duddy, supra. Therefore, we uphold the trial commissioner’s decision that the claimant was ineligible for total disability benefits. The evidence supports the trier’s factual findings that, medically speaking, the claimant had a work capacity, and that she was employable in the job market based on her transferable skills and her physical condition. See Gombas v. Custom Air Systems, Inc., 4996 CRB-4-05-9 (September 20, 2006) (whether or not a claimant offers marketable labor is a factual question).
The trial commissioner’s decision is hereby affirmed.
Commissioners Donald H. Doyle, Jr., and George A. Waldron concur.
1 The trial commissioner also cited the “odd lot” doctrine, a separate legal test for work capacity that has not been adopted in this state. Gombas v. Custom Air Systems,Inc., 4996 CRB-4-05-9 (September 20, 2006). BACK TO TEXT
2 The claimant did not file a Motion to Correct the trial commissioner’s factual findings. Administrative Regulation § 31-301-4 provides that an appellant who desires to have the commissioner’s factual findings corrected has to file a motion with the commissioner requesting the changes that the appellant is requesting, along with the evidence that is relevant and material to those corrections. In cases where a party is asking the commissioner to reconsider her choice to rely on, or disregard, a medical opinion or someone’s testimony, a Motion to Correct is the only way to raise that issue. Bombardier v. CT Valley Fitness Center, 4475 CRB-6-02-1 (November 20, 2002). Once the matter is before this board on appeal, we are limited to the factual findings as they stand, and all we may do is determine whether there is any evidence in the record to support them. Capezzali v. Bridgeport, 4858 CRB-4-04-9 (September 7, 2005); see also, McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007)(corrected finding could have clarified whether trier’s order was intended to discontinue current medication regimen). We note this because many of the claimant’s arguments here on appeal concern the credibility of conflicting evidence, which is something only the trial commissioner can decide. BACK TO TEXT