Smith v. City of Waterbury

CASE NO. 5326 CRB-5-08-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 4, 2009

WALTER SMITH

CLAIMANT-APPELLANT

v.

CITY OF WATERBURY

EMPLOYER

SELF-INSURED

and

BERKLEY ADMINISTRATORS

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Jill F. Morrissey, Esq., and David J. Morrissey, Esq., Morrissey, Morrissey & Mooney, LLC, 203 Church Street, P.O. Box 31, Naugatuck, CT 06771.

The respondents were represented by Matthew Necci, Esq., and Frank May, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the February 22, 2008 Finding and Dismissal of the Commissioner acting for the Fifth District was heard September 26, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter, a retired Waterbury police officer, appeals from the decision of the trial commissioner denying him temporary total disability benefits. We find that based on the record before the trial commissioner, the decision on whether to award such benefits was committed to the commissioner’s discretion. Accordingly, we affirm the trial commissioner and dismiss this appeal.

The trial commissioner found the following facts which are not disputed by the parties. The claimant retired from the Waterbury Police Department in 1994 at the age of 62. At that point he was diagnosed with heart disease, which has been accepted as a § 7-433c C.G.S. claim by the respondents. The claimant has not worked since his retirement, and has been collecting approximately $3,200 per month in pension and social security benefits. The claimant now asserts that as of March 12, 2004 he was totally disabled and seeks benefits under § 31-307 C.G.S.

The claimant presented an opinion from his treating physician, Dr. Joseph Anthony, a cardiologist, that he was unable to work in any capacity. He also presented an opinion from his other treating physician, Dr. John Salerno, a doctor of internal medicine, that he was unable to work because of his cardiac condition.

The trial commissioner reviewed the medical records of the treating physicians. The commissioner noted that between October 4, 1989 and December 30, 2005, claimant had visited Dr. Salerno on 45 occasions. Only three of Dr. Salerno’s notes indicate treatment for a heart related problem–June 29 and July 18, 1990, and December 30, 2005. The commissioner also reviewed the results of cardiac tests performed on the claimant. On March 11, 2004, the claimant underwent a cardiac treadmill test with an accompanying rest study. No dramatic adverse results were detected from these two diagnostic tests. On April 11, 2006, the claimant was prescribed a Holter monitor for 24 hours by Dr. Anthony. The claimant was required to keep a log of all that he did for that 24 hour period. The trial commissioner concluded this log indicated the claimant had a sedentary work capacity.

The respondents had their expert witness, Dr. Zosimo Adea Adefuin, a physician board-certified in internal medicine and cardiovascular disease, conduct their own examination of the claimant. Dr. Adefuin opined the claimant had a sedentary work capacity.

Based on these subordinate facts, the trial commissioner concluded the opinions of the claimant’s treating physicians regarding the claimant’s work capacity were contradicted by the diagnostic testing and other medical evidence. The trial commissioner concluded the claimant had a sedentary work capacity, citing the claimant’s own testimony and his 24 hour log when wearing the Holter monitor. As the trial commissioner concluded the claimant failed to carry his burden of proof that he is totally disabled from work of any kind, the trial commissioner dismissed the claim.

The claimant filed a Motion to Correct and a Motion for Articulation. The respondents filed objections to the two motions. The trial commissioner denied the Motion to Correct and sustained the respondents’ objection to the Motion for Articulation, but did expound upon the grounds for the specific findings in his decision. The claimant has pursued an appeal from this decision.

The claimant argues the trial commissioner erred by finding that he was not totally disabled and had a sedentary work capacity. These issues are generally fact driven decisions on the part of a trial commissioner. We have recently reiterated in Clarizio v. Brennan Construction Company, 5281 CRB-5-07-10 (September 24, 2008) the level of deference we must extend to a fact finder’s prerogative.

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 fact-finder 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. Blakesles Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

Id.

We also note that it is the burden of the claimant to establish their medical condition is causally related to their employment. Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 677-678 (2008), cert. granted, 286 Conn. 916 (2008). To that extent, the question is not whether the claimant suffers a cardiac ailment, or a different form of compensable injury. The claimant must prove that their compensable ailment was a substantial factor in their current disability. Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008); Lamontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008) and Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008).

The claimant argues that his treating physicians offered probative evidence that he was totally disabled as a result of the work-related cardiac condition, arguing this condition greatly limited his mobility. The trial commissioner, upon articulation, pointed out that he ascribed greater weight to the other factors which impaired the claimant’s mobility i.e., degenerative joint disease and gout. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999) is on point and stands for the proposition that appellate boards must defer to a trier’s evaluation of expert testimony.

We also note that the trial commissioner relied on the results of various objective tests such as a treadmill test and a 24 hour Holter monitor in rendering his decision. We also note the trial commissioner found these results inconsistent with the opinions of the treating physicians. This decision rests with the trial commissioner. Weir, supra. Since we find the determination based on the evaluation of competent evidence, we are not in a position to reverse it.1

“We have reiterated that it is the claimant’s burden to prove that they are totally disabled. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007).” Clarizio, supra. The claimant did not persuade the trial commissioner he was totally disabled as a result of his work related injuries. We find this decision to be within his reasonable discretion.

The claimant finally argues that even if he was to be found to have a limited work capacity, that this capacity was so limited that pursuant to the precedent in Osterlund v. State, 135 Conn. 498 (1949) the claimant should have been determined to be totally disabled. The trial commissioner concluded otherwise and we find he had reasonable grounds for this conclusion.

The trial commissioner pointed out that the respondents’ expert witness, Dr. Adefuin, opined the claimant had a sedentary work capacity. The claimant argues that this stated work capacity was extremely limited and the witness qualified the extent of this capacity on cross-examination.2 This argument is akin to the argument we found unpersuasive in Clarizio, supra. In Clarizio, the trial commissioner also relied on an expert witness who ascribed some limited work capacity to the claimant, which the claimant believed was so de minimis as to constitute an Osterlund claim. We disagreed.

We find this case very similar to another case where the claimant asserted error when a trial commissioner rejected an Osterlund claim. Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007). In Leandres the claimant also asserted his work capacity was effectively nonexistent, but the trial commissioner credited expert testimony that the claimant had a sedentary work capacity. Dr. Yue offered testimony in the present case which the trial commissioner found persuasive that the claimant had some work capacity. In addition, in Leandres the trial commissioner considered the demeanor testimony of the claimant and we held “inferences based on the trial commissioner’s personal observation are within her exclusive dominion.”

Id.

We note that in Conclusion B the trial commissioner cites the claimant’s own testimony in determining the claimant had a work capacity of a sedentary nature. Pursuant to Leandres, supra, and Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) the trial commissioner’s evaluation of the claimant’s condition after he observes his live testimony is not subject to reversal by an appellate panel.3

In Leandres, supra, we pointed out “it is a factual decision whether a claimant can perform marketable labor, Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002), and we cannot revisit the trial commissioner’s findings of fact.”4 Since the trial commissioner had probative evidence that the claimant had a sedentary work capacity, this decision was not arbitrary or capricious.5

We therefore conclude that the trial commissioner could reasonably have reached the conclusions he reached in the Finding and Dismissal. We affirm the Finding and Dismissal and dismiss this appeal.

Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.

1 The claimant asserts the trial commissioner relied on allegedly “impermissible factors” in reaching his decision on the issue of whether the claimant was totally disabled; Claimant’s Brief, pp. 3-5, yet did not discuss the issue of the objective test results relied on by the trial commissioner. BACK TO TEXT

2 The trial commissioner was permitted to rely on those opinions of Dr. Adefuin he found consistent with other evidence concerning the claimant’s work capacity. “We have reiterated the maxim that a trial commissioner need not credit every opinion an expert witness offers when she relies on that expert for an opinion she does credit. See O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) and Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006).” Risola v. Hoffman Fuel Company of Danbury, 5120 CRB-7-06-8 (July 20, 2007), dismissal for lack of final judgment, A.C. 29056 (October 18, 2007). BACK TO TEXT

3 Among the activities the claimant documented in his diary during a Holter monitor test in April 2006 (Respondents’ Exhibit 2) and which he testified to at the formal hearing included driving around town running errands. March 19, 2007 Transcript, p. 36; as well as light yard work and gardening; March 19, 2007 Transcript, pp. 33 and 36. He also testified he had engaged in visiting casinos on a weekly basis. March 19, 2007 Transcript, pp. 37-39. BACK TO TEXT

4 The record herein is also absent other objective evidence the claimant established he satisfied the Osterlund standard by such evidence as unsuccessful job searches; reentry to the work force and inability to perform a sedentary job; or expert testimony on the issue of vocational disability Clarizio v. Brennan Construction Company, 5281 CRB-5-07-10 (September 24, 2008). BACK TO TEXT

5 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the claimant’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result. 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