State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Heilweil v. Town of Montville Board of Education

CASE NO. 5161 CRB-8-06-11



OCTOBER 24, 2007











The claimant was represented by J. Xavier Pryor, Esq., Brignole, Bush and Lewis, Attorneys at Law, 73 Wadsworth Street, Hartford, CT 06106-1768.

The respondents were represented by Terrance M. Brennan, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the November 1, 2006 Finding and Award of the Commissioner acting for the Eighth District was heard June 15, 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 appeal herein concerns an award for benefits under § 31-307 C.G.S. The claimant suffered a compensable injury as a school bus driver for the respondent. The respondents have accepted the injury but contested the issue of disability. Following a formal hearing the trial commissioner determined the claimant was totally disabled from any gainful employment and awarded her weekly benefits, as well as reimbursement for her expenses incurred in retaining a vocational expert for the hearing. The respondents have appealed. We find the commissioner acted appropriately in awarding benefits under § 31-307 C.G.S. but find no statutory authority authorizing the award of fees for a vocational expert. Therefore, we reverse the commissioner on the issue of reimbursement to the claimant and affirm the balance of the award.

The following facts are pertinent to this appeal. The claimant suffered a fall and injured her back on November 7, 2001 for which a Voluntary Agreement was approved on May 5, 2003. She also has an accepted left shoulder injury which was sustained on October 19, 2000. She has not worked for the respondent since 2002 as they were not able to accommodate her physical restrictions. She has treated with many physicians for her work related injuries. The claimant asserted that she was totally disabled, which was contested by the respondents.

At the formal hearing the claimant presented both the testimony and reports of a vocational expert, Michael Dorval, on the issue of whether she had a work capacity. Mr. Dorval had examined the claimant over several days in early 2005 and had performed a number of tests on the claimant. Mr. Dorval testified that based on his examinations that while there were some hypothetical positions available to the claimant, “in reality there were no jobs she could perform based on the profile.” November 14, 2005 Transcript, p. 31. The claimant testified she suffered constant pain and had been placed on a number of physical restrictions by her doctors which limited her daily activities. The evidence submitted by Mr. Dorval included medical reports documenting these restrictions as well as her disc herniations. Claimant’s Exhibit A.1 The respondents offered no witnesses or exhibits.

Based on the evidence presented the trial commissioner concluded the claimant was totally disabled from any gainful employment as a result of her work injuries. He found the opinion of Michael Dorval credible regarding the claimant’s work capacity. He ordered the respondents to commence paying total disability benefits commencing November 14, 2005 and ordered the respondents to reimburse the claimant for her out of pocket expenses in retaining Mr. Dorval. The respondents filed two Motions to Correct which were both denied. They have appealed the finding of total disability, the duration to which the trial commissioner awarded the claimant total disability benefits and the award to the claimant of reimbursement for Mr. Dorval’s expenses. We will deal with each issue separately.

We note it is the claimant’s burden to prove to the trial commissioner that she is totally disabled Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). That standard has long been defined as per Osterlund v. State, 135 Conn. 498 (1949) as being an inability to earn money “in any occupation he may reasonably pursue” Id., 505-506. The trial commissioner concluded that the claimant had established this to his satisfaction. Our standard for review for an award of § 31-307 C.G.S. benefits is outlined in McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007):

We begin by stating that the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra, Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). McMahon, Id.

Our review of Mr. Dorval’s testimony and report indicates that in their totality they support the trial commissioner’s finding that the claimant was totally disabled. His report specifically concluded she “would not be capable of regular and sustained employment on either a full or a part–time basis” Claimant’s Exhibit A, p. 22. This comports with the standard delineated in Osterlund, supra. The respondents’ efforts to cherry pick statements from Mr. Dorval’s testimony discussing a possible work capacity do not provide grounds to reverse the trial commissioner’s evaluation, as we rejected a similar effort in Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007) to second guess the trial commissioner’s determination of expert testimony. We find probative evidence supports the trial commissioner’s findings. Moreover, the respondents chose not to submit any expert testimony to rebut this evidence. This case is the mirror image of another recent case, Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006). In both this case and Do the respondents chose not to submit evidence. In Do the trial commissioner did not find the claimant’s evidence credible and we upheld that decision on appeal. In the present case, the trial commissioner did find the claimant’s evidence credible, and we must respect that conclusion.

The respondents argue that the trial commissioner erred by awarding the claimant § 31-307 C.G.S. benefits for an indeterminate period, arguing such an award cannot continue past the date of the formal hearing. We reached a different conclusion on the same issue in Hodio v. Staples, Inc., 5152 CRB-3-06-10 (October 3, 2007) and upheld an award of ongoing temporary total disability benefits continuing forward from the date of the hearing. For the reasons we stated in Hodio, supra, we find no error in the trial commissioner’s award herein.

We do find error in the trial commissioner’s order that the respondents reimburse the claimant for her expenses in retaining Mr. Dorval. We do note that a claimant who prevails at a formal hearing can have their physician or medical provider reimbursed by the respondent for the time spent testifying, pursuant to § 31-298 C.G.S. Our precedent does not permit a trial commissioner to expand the list of professionals who are entitled to reimbursement, however.

“Vocational rehabilitation specialists and other non-physician expert witnesses who testify on behalf of a claimant are not included in § 31-298 as witnesses whose testimonial costs can be assigned to respondents in the event a claimant prevails on a contested claim. The statute only allows payment for costs associated with testimony by ‘a competent physician, surgeon or other medical provider.’ As there is no other statutory basis for recovery of testimonial fees by a claimant, the trial commissioner was without authority to order the respondent to make such payment. Aguayo v. Franklin Mushroom Farms, Inc., 3697 CRB-2-97-1 (January 28, 1999).” Fiorillo v. City of Bridgeport, 4585 CRB-4-02-11 (December 17, 2003).

We therefore vacate the trial commissioner’s order of reimbursement to the claimant for Mr. Dorval’s expenses. In all other respects we affirm the trial commissioner and dismiss this appeal.2

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 The claimant sought reimbursement for unauthorized disc surgery at the formal hearing. This relief was denied by the trial commissioner and is not an issue under appeal. BACK TO TEXT

2 We uphold the trial commissioner’s denial of the respondents’ Motions to Correct, with the exception of Correction #6 on November 16, 2006 to delete reimbursement of Mr. Dorval’s expenses from the award, where we reverse the trial commissioner. Since the other matters raised in the motions to correct essentially sought to interpose the respondents’ conclusions as to the law and 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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