CASE NO. 5111 CRB-6-06-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 21, 2007
KATHLEEN C. GREEN
GENERAL MOTORS CORPORATION NEW DEPARTURE
The claimant was represented by Robert Shields, Esq., Horton, Shields & Knox, 90 Gillette Street, Hartford, CT 06105.
The respondents were represented by Richard Bartlett, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review1 from the July 7, 2006 Finding & Order of the Commissioner acting for the First District was heard January 19, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.
JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal concerns a claimant who suffered two compensable knee injuries in 1990. In 2003 the respondents filed a Form 36 to discontinue the temporary total disability benefits she had been receiving. Following a formal hearing the trial commissioner approved the Form 36 and determined that the claimant had a 20% permanent partial disability rating for each knee. The claimant has appealed, asserting the trial commissioner failed to properly consider her claim as based on the standards delineated in Osterlund v. State, 135 Conn. 498 (1949) for total disability; improperly considered the issue of permanent disability, and issued a determination on permanency based on unreliable evidence. We find no error on the first two issues, but believe the evidence supportive of the disability rating was inconsistent and inadequate under the standards delineated in Struckman v. Burns, 205 Conn. 542 (1987). We remand this matter for a new determination of permanent disability.
Following a formal hearing which commenced January 13, 2005 and was continued to June 21, 2005 and December 5, 2005 with the record closing on March 24, 2006, the trial commissioner found the following facts. Two voluntary agreements had been reached between the claimant and the respondent for her knee injuries; an agreement on the left knee approved on September 21, 1991 and one for the right knee approved on January 9, 1991. Findings, ¶¶ 1-2. Following a May 20, 2003 examination of the claimant by the respondents’ examiner, Dr. Peter R. Barnett, the respondents filed a Form 36 asserting the claimant had reached maximum medical improvement. Dr. Barnett determined the claimant had a sedentary work capacity, a 40 percent impairment of her right leg and a 25 percent impairment of her left leg. Findings, ¶¶ 3-5. The respondents filed a second Form 36 on September 4, 2003 based on a report from the claimant’s treating orthopedist, Dr. Glenn Taylor, opining that the claimant was capable of gainful employment. Findings, ¶¶ 6-8.
The critical issue at the formal hearing was the claimant’s gait. The trial commissioner noted that at the hearing the claimant used a cane and walked with a limp and an unusual gait, and walked with her right foot approximately perpendicular to her direction of travel. Findings, ¶ 11. The respondents presented a surveillance videotape recording the claimant’s activities on four occasions in 2003 and 2004, walking without the dramatic limp and unusual gait exhibited at the hearing, and requiring little use of a cane. Findings, ¶¶ 13-14. A number of physicians who had examined the claimant reviewed the videotape. Her treating rheumatologist, Dr. Peter Greco, testified that the claimant’s gait in the video was different than she demonstrated in his office. He also opined the claimant reached maximum medical improvement in the 1990’s. Findings, ¶¶ 16-17.
Dr. Barnett also reviewed the tape. Having previously testified prior to viewing the tape that the claimant walked with a marked limp and her right leg significantly rotated, he said the gait in the video tape “was totally inconsistent with the gait she demonstrated in his office” and “one would have to question the legitimacy of the effort she put in when I saw her.” Findings, ¶¶ 18-27. While he reiterated his opinion as to the claimant’s work capacity, opining to a slight modification as to restrictions, he renounced the permanency ratings he had previously opined to regarding the claimant. Findings, ¶¶ 28-29. Another physician, Dr. Mark Ruderman, also examined the claimant on behalf of the respondents. He concluded the claimant did not have a disease in her right hip and had no reason to walk with her right foot externally rotated. He also noted a “world of difference” between the gait displayed on the videotape and the gait the claimant had when examined in his office. He also opined as to a sedentary work capacity for the claimant. Findings, ¶¶ 30-39. A vocational expert, James Cohen, PhD., also had examined her and concluded she did have a part-time work capacity. Findings, ¶¶ 40-41.
Based on those subordinate facts the trial commissioner concluded that Drs. Barnett, Taylor and Ruderman were credible witnesses; while the claimant’s presentation of symptoms was not credible. Findings, ¶¶ A-C. He concluded the claimant reached maximum medical improvement in the 1990’s. Findings, ¶ F. He accepted Dr. Cohen’s vocational assessment and found the claimant had a capacity to work but had not shown a willingness to work. Findings, ¶¶ E, H and I. He determined she had a permanent partial disability rating of 20 percent in each knee. Findings, ¶ G. He granted the Form 36 effective June 16, 2003 and reclassified any benefits the claimant received after this date as § 31-308(b) C.G.S. benefits. Findings, ¶¶ I-IV.
The claimant filed a Motion to Correct the Finding and Order. The motion sought to revise Findings, ¶ 28 to include actual testimony from Dr. Barnett rather than the paraphrasing of his conclusions in the Finding and Order. The trial commissioner rejected this motion. The claimant appealed, including the denial of the Motion to Correct among her reasons for appeal.
There are three grounds for the claimant’s appeal. She asserts that the ruling approving the Form 36 and terminating the § 31-307 benefits should be vacated since the trial commissioner allegedly failed to rule on her Osterlund claim; that the findings regarding permanency should be vacated due to an alleged lack of notice; and that the commissioner had an inadequate evidentiary basis for a finding of 20% permanent partial impairment to each of the lower extremities. We find only the last argument meritorious. For the following reasons we find the claimant’s other arguments unpersuasive.
The claimant argues that due to her physical limitation she is totally disabled, since like the claimant in Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998) she has a light duty capacity but cannot find work despite the exercise of reasonable diligence. This is a factual argument to which we must defer to the trial commissioner. Counsel for the claimant clearly presented an argument regarding vocational incapacity to the trial commissioner. “Basically, our position is she is not fit to continue with work, and thus she should continue with her benefits exactly as they are today.” January 13, 2005 Transcript, pp. 5-6.
We can infer that due to the absence of a finding regarding vocational disability that the trial commissioner was not persuaded by this argument. We also note that the trial commissioner did not find the claimant a credible witness. Findings, ¶ C. While he “accepted” Dr. Cohen’s vocational assessment (Findings, ¶ E), we may infer from his findings as to the claimant’s credibility that he did not believe she had made a serious effort to obtain employment. Findings, ¶ H.2 We agree with the respondents that the claimant’s motion to submit additional evidence is an effort to try the case in an inappropriate piecemeal fashion. Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001). Therefore, we deny the claimant’s motion.
The bottom line is that the trial commissioner was not persuaded the claimant was totally disabled “If the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.” Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000).3 We must defer to the trial commissioner’s determination.
The claimant also asserts that the Finding and Order is invalid due to a lack of notice. She claims there was a lack of notice that permanent partial disability was among the issues under discussion. We disagree. The Form 36’s in this case included attached medical reports assigning permanency ratings for her knees. Therefore, we believe the issue of permanent disability was always before the trial commissioner. We also note that prior to testimony at the formal hearing the respondents raised the issue of awarding permanency benefits instead of temporary total disability benefits. January 13, 2005 Transcript, pp. 15-16. The respondents’ proposed finding of facts also outlined a proposed permanency rating. This is not a case where the relief awarded failed to conform to the issues presented to the trial commissioner i.e. Bennett v. Wal-Mart Stores, 4939 CRB-7-05-5 (May 15, 2006) “[t]he record however shows the only issue presented to the trial commissioner at the hearing was that of temporary total disability.” Therefore, the claimant’s reliance on Palm v. Yale University, 3923 CRB-3-98-10 (January 7, 2000) is misplaced and we are not persuaded by this argument.
While we believe the issue of permanency was properly before the trial commissioner, we must ascertain if his decision is supported by the evidence. We outlined our scope of review on this issue in Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007):
In Sullivan v. Madison-Police Department, 4893 CRB-3-04-12 (June 9, 2006) we explained that although we are deferential to the finding of facts reached at the trial level, our appellate review must consider whether the facts found are supported by competent evidence and are legally consistent with the ultimate outcome of the case.
While this board cannot retry the facts of this case, it must review the sufficiency of the evidence against the legal standards required for granting an award. “The power and duty of determining the facts rests with the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993). Id.
The trial commissioner in this case concluded that the claimant had a permanency rating of 20% in each knee. Findings, ¶¶ G and II. The sole source for this rating would be the testimony of Dr. Barnett. The claimant described his testimony as “a very confusing and sometimes contradictory analysis.” Claimant’s Brief, p. 7.
Dr. Barnett had originally offered disability ratings of 40% to the claimant’s right knee and 25% to the claimant’s left knee when his report was affixed to the Form 36. Respondents’ Exhibit 1. At his August 23, 2005 deposition he was asked to reconsider these ratings immediately after viewing the surveillance tape showing the claimant walking without an abnormal gait. He stated unequivocally his opinion as to the claimant’s disability now differed after seeing the tape. Respondents’ Exhibit 7, p. 41. The remainder of his testimony was less definitive. For example, this exchange occurred between respondents’ counsel and the witness:
Q: Are we in the right knee, or the left knee?
A: We’re in the left knee. The additional 20 percent—I would give her 20 percent for the arthritic changes. And the other 20 percent—
Q: The left knee you had given 25 percent
A: I’m getting mixed up. Let’s start over. . . .”
Respondents’ Exhibit 7, p. 43.
Dr. Barnett further testified he “would probably reduce the permanency that I thought she had by at the very least 20 percent. 20 percent less.” Respondents’ Exhibit 7, p. 44. He also testified that “it’s clear from reviewing those tapes that the right knee looked less involved than the left knee. So whatever number is assigned to the left knee based on flexion contracture and also based on x-rays, the right knee should be less than the left knee.” Respondents’ Exhibit 7, p. 45. This was diametrically opposite to his previous conclusion that the right knee had a greater level of disability than the left knee. Respondents’ Exhibit 1. The trial commissioner’s conclusion that both knees have the same level of disability therefore is inconsistent with both Dr. Barnett’s original reports and his deposition testimony.
We have two problems with the trial commissioner’s conclusions. First, we are not satisfied Dr. Barnett’s testimony comports with the standards in Struckman v. Burns, 205 Conn. 542, 555 (1987). We note the lack of unequivocal opinions expressed in his deposition testimony and while the “magic words” approach has not been applied by this Board, see Marra v. Ann Taylor Stores Corp., 5027 CRB-3-05-11 (December 29, 2006), it is hard to ascribe the concept of “reasonable medical probability” to this testimony. This hesitancy is reinforced by Dr. Barnett later minimizing the probative effect of the surveillance video “you can’t rely on that to give an accurate, precise number.” Respondents’ Exhibit 7, pp. 48-49. Unlike our decision in Marra, we are not satisfied sufficient competent evidence supports the award.
We are also concerned, even if we concluded Dr. Barnett offered competent evidence, that the trial commissioner’s decision is inconsistent with the evidence on the record. The respondents cite Stankiewicz v. Rockville Memorial Nursing Home, 3959 CRB-2-99-1 (June 28, 2000) for the proposition a trial commissioner may “accept or reject evidence and testimony based upon her assessment of its credibility” and may “accept only portions of a witness’s testimony.” We do not believe Stankiewicz endorses the view a trial commissioner should issue an award inconsistent with an expert witness’s testimony, however. Were one to credit Dr. Barnett’s most recent testimony it still would not support awarding the same permanency award to each knee.
We recently dealt with a trial commissioner reaching a determination of disability rating after relying on equivocal evidence in Risola v. Hoffman Fuel Company of Danbury, 5120 CRB-7-06-8 (July 20, 2007). In Risola the trial commissioner issued a disability rating based on an opinion the treating physician indicated was no longer valid. We ordered a remand as “[w]e believe the situation is akin to Bazelais v. Honey Hill Care Center, 5011 CRB-7-05-10 (October 25, 2006). In Bazelais, we reviewed the Finding and Order which awarded benefits for total disability based on the testimony of two doctors and determined ‘[t]he problem we face is the two doctors do not offer consistent testimony on the issue of total disability’ . . . We believed a remand was necessary in Bazelais to clarify what evidence the trial commissioner relied on in determining the issue of total disability.” Id.
For those reasons, we believe the issue of a permanency rating for the claimant’s knees must be remanded to the trial commissioner for further proceedings. In all other respects, including the approval of the Form 36, we uphold the trial commissioner’s Finding and Order and dismiss this appeal.
Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.
1 We note that an extension of time was granted during the pendency of this appeal. BACK TO TEXT
2 The claimant testified she had not tried to find work, January 13, 2005 Transcript, pp. 52-53, had not engaged in vocational rehabilitation, January 13, 2005 Transcript, p. 53 and was on social security disability. January 13, 2005 Transcript, p. 53. BACK TO TEXT
3 We have upheld a trial commissioner who determined the claimant had established a persuasive Osterlund claim after a Form 36 was granted, due to unsuccessful job searches and credible vocational testimony. Howard v. CVS Pharmacy, Inc., 5063 CRB-2-06-3 (April 4, 2007). Our decision herein does not preclude a claim for such future relief. BACK TO TEXT