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Smith v. Federal Express Corporation

CASE NO. 5405 CRB-7-08-12



DECEMBER 1, 2009











The claimant was represented by Michael Ewing, Esq., Adelman, Hirsh & Newman, 1000 Lafayette Boulevard, Bridgeport, CT 06604.

The respondents were represented by Thomas Galvin Cotter, Esq., The Cotter Law Firm, LLC, 2563 Main Street, Suite 201, Stratford, CT 06615.

This Petition for Review from the December 8, 2008 Ruling on Claimant’s Motion to Correct Findings Dated December 5, 2008 of the Commissioner acting for the Seventh District was heard June 19, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from the December 8, 2008 ruling on a Motion to Correct a Finding dated November 12, 2008. The claimant argues that the trial commissioner erred by approving a Form 36 retroactively to the date of a medical report, and not applying the date in which the form was filed with the Commission. The claimant also asserts the trial commissioner erred by not granting the claimant’s Motion to Correct, which sought to add findings consistent with the claimant lacking a work capacity. We agree with the claimant on the issue as to the effective date of the Form 36. We herein order that portion of the Finding vacated and the trial commissioner is directed to utilize the actual date of the Form 36 as the date in which temporary total disability benefits are discontinued. As to the other issues raised by the claimant, we believe they go to the factual findings of the trial commissioner and shall not be disturbed on appeal.

The following facts are pertinent to our consideration of this appeal. The trial commissioner took administrative notice of a May 15, 2000 Finding and Award to the claimant, which was affirmed by this board in Smith v. Federal Express Corp., 4242 CRB-7-00-5 (August 22, 2001). The commissioner considered in her opinion what had occurred to the claimant following his compensable 1996 motor vehicle accident. She noted the claimant had moved to Maryland where he lived with his wife and now 22 year old son. Since 1996 the claimant has been treating with Dr. Sameer B. Shammas. Dr. Shammas prescribed physical therapy, Indocin and Darvocet for pain, a cane and a TENS unit for the claimant. Dr. Shammas has opined that since the accident the claimant developed a heterotopic bone formation around his hip joint which inhibited his ability to regain normal use of his hip and caused the pain and stiffness to persist. Dr. Shammas has repeatedly determined the claimant to be totally disabled and has opined against the claimant receiving hip surgery.

In October 2001 Dr. Louis E. Levitt, the respondents’ examiner, opined that the claimant had three treatment options; one of which was to do nothing and the others involving surgical intervention. Dr. Levitt indicated that both possible surgical procedures were “fraught with unpredictable outcomes” and would leave the claimant in chronic pain. The claimant underwent a Functional Capacity Evaluation in 2003 which stated the claimant could drive for 45 minutes, but “[a]s a result of Mr. Smith declining to participate in material handling tasks, his physical demand level cannot be determined at this time.” Dr. Shammas opined afterwards in 2004 that the claimant did not need surgery, but that various options available to try to improve the claimant’s range of motion were futile. Dr. Shammas reiterated this opinion following a December 5, 2005 examination of the claimant.

On December 6, 2005, the claimant saw Dr. Robert A. Smith for a respondents’ examination. There is no record in Dr. Smith’s report that the claimant was wearing a TENS unit. Dr. Smith indicated that there had been some discussion of surgery on the claimant’s hip, but the claimant declined further surgery. Dr. Smith rated the claimant with a 30% permanent partial disability of the left lower extremity. He further opined that while the claimant is incapable of returning to full duty work as a Federal Express employee, he does have a sedentary work capacity where he could change positions frequently and at will with a ten (10) pound lifting restriction.

The claimant did not see Dr. Shammas in 2006, but in 2007 Dr. Shammas reported that the claimant’s symptomotology remained the same. The claimant reported to Dr. Shammas that he has been able to increase his walking to about 30-60 minutes per day and that he is sometimes able to do it without a cane. The claimant related that he was “watching” his son’s business as his son was recovering from a car accident. Dr. Shammas still believed the claimant was permanently disabled.

The trial commissioner considered issues related to the claimant’s son’s business. The claimant’s son operates a Taekwondo academy in Maryland. The claimant denies an ownership interest in the business, but testified that he went to the business three times a week to help out his son. He testified he drove to the business sometimes. The claimant testified that his involvement at the academy continued even when his son was unable to teach classes there, having been injured in a mugging in 2006. During this period when his son retained a woman named Faith Dortch to teach classes at the academy, the claimant continued to help out at the business, even putting on a uniform and showing prospective students around the facility. The claimant denied being the facility’s bookkeeper, but admitted that he accepted customer checks for the business, and that phone calls for the business rolled over to his home telephone or cell phone. He also testified that he had traveled to Taekwondo tournaments in New Jersey.

The trial commissioner noted that the claimant had been filmed by surveillance cameras on four occasions in 2006 and 2007, and the tapes indicated the claimant was driving an SUV, sitting in an SUV and lifting carts and bags out of the SUV. The tapes indicated that on one occasion the claimant spent three hours at a YMCA where the claimant’s son worked. The tapes did not show the claimant using a cane to walk although the claimant used a cane at his July 5, 2007 and the January 16, 2008 formal hearings. The claimant also testified that he had owned a jet ski and ridden behind his wife on the watercraft. He did not advise his treating physician that he had ridden on a jet ski. The claimant also acknowledged he drove from Maryland to Connecticut for the formal hearing.

Conflicting evidence was presented by expert witnesses on whether the claimant had a work capacity. The respondents’ expert, Dr. Robert A. Smith, had opined in 2005 the claimant had a sedentary work capacity. In a January 16, 2008 deposition Dr. Shammas opined he did not believe the claimant can do work on a consistent basis; citing restrictions on lifting, standing, kneeling and going up stairs. The claimant also presented evidence from Charles Smolkin, a vocational rehabilitation counselor. Mr. Smolkin opined that the claimant has no competitive job capabilities. He based his opinion upon a review of the claimant’s medical records, his functional capacity examination, surveillance tape of the claimant and upon the results of various vocational tests administered by Mr. Smolkin. Mr. Smolkin however testified he was unaware of what duties the claimant had in the Marine Corps prior to working for the respondent, and opined that the claimant’s use of a jet ski and driving from Maryland to Connecticut had no effect on his opinion regarding employability. Mr. Smolkin’s tests indicated that the claimant demonstrated “high average reasoning ability (I.Q. 108) on a non-verbal reasoning test…” which would suggest he would be able to learn new skills. The tests also demonstrate that the claimant “has average to above average levels of academic achievement” and “above average skills for entry level occupations requiring the dexterous use of the fingertips.” Mr. Smolkin acknowledged being paid $2500 by the claimant’s attorney for his report prior to preparing his report and said he thought a prospective client may not want to hire him if he cannot give favorable testimony. Mr. Smolkin did opine the claimant demonstrated “a high level of symptom magnification.”

Based on the foregoing subordinate facts, the trial commissioner concluded that Mr. Smolkin’s testimony was compromised by being paid in advance of authoring his report. She did credit Mr. Smolkin’s opinions regarding the claimant’s symptom magnification and his skills that would enable him to re-enter the work force. She found the claimant had admitted he could walk from 30 to 90 minutes a day, which speaks to an increased endurance for part-time, light duty work. She noted that was consistent with his ability to drive independently for 20-30 minutes. While Dr. Shammas had opined the claimant lacked the consistency for work, she found the remainder of his opinions consistent with a sedentary work capacity for the claimant. The commissioner found the claimant was permanently partially disabled. She also found the claimant was temporarily totally disabled prior to December 7, 2005; but as of December 7, 2005, the claimant has a light-duty, part-time, sedentary work capacity.

The claimant filed a Motion to Correct seeking a number of corrections. Only one correction was granted which did not impact the substantive outcome of the decision. The claimant has now filed this appeal.

The claimant argues on appeal that the trial commissioner erred by rejecting his Motion to Correct. In his view, Dr. Shammas and Mr. Smolkin offered substantial evidence that the claimant was still totally disabled as of the date of the formal hearing. We find no precedent supportive of overturning the trial commissioner’s decision on this issue.

We look to the case of Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). In Vitti the claimant argued the trial commissioner failed to add material findings of fact to his Finding, and this failure constituted reversible error. We disagreed, pointing out that when a trial commissioner reaches a decision, appellate review is generally limited to determining if the commissioner’s actions were “arbitrary or capricious.”

We have reviewed the corrections denied by the trial commissioner, and simply do not share the claimant’s view that the trial commissioner’s conclusions were arbitrary and capricious pursuant to the standards delineated in In re Shaquanna M., 61 Conn. App. 592 (2001). We believe the deferential standard in Fair v. People’s Savings Bank, 207 Conn. 535 (1988) must be applied to a trial commissioner’s decision on what corrections to grant when considering a Motion to Correct.

Vitti, supra.

Our review of the proposed findings which were rejected by the trial commissioner demonstrates this was an effort to retry the case. A trial commissioner is solely responsible for the evaluation of expert medical opinions. See Nicotera v. Hartford, 5381 CRB-1-08-9 (September 2, 2009) and O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999). Since the trial commissioner denied the proposed corrections, we must infer she did not find the evidence provided by the claimant either probative or persuasive. Jacobson v. General Dynamics Corp./Electric Boat Division, 4642 CRB-2-03-3 (March 12, 2004). Indeed, the trial commissioner’s conclusions identified specific concerns which she had with the testimony of the claimant’s witnesses which supported the claimant’s position. See Finding, ¶¶ A and I. Pursuant to the precedent in Fair, supra, we cannot second-guess the determination of the trial commissioner on this issue.1

The claimant raises a persuasive argument that the trial commissioner’s effective date for the Form 36 was in error. The trial commissioner decided that the claimant was no longer totally disabled as of the date of the respondents’ medical examination, December 6, 2005. Finding, ¶ J. The respondents, however, did not seek to terminate temporary total disability benefits until they filed a Form 36 on January 30, 2007. The effect of the commissioner’s decision on this issue was to give the respondents’ Form 36 retroactive effect. Precedent does not support this decision.

The case of Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (February 5, 1997) governs the fact pattern in this case. In Torres, we reversed a trial commissioner’s decision to terminate temporary total disability benefits at a date prior to the filing of a Form 36. We held that:

Our cases require that a respondent notify the commissioner and employee of a proposed discontinuance of benefits before the date of the proposed discontinuance. Platt v. UTC/Pratt & Whitney Aircraft Div., 3 Conn. Workers’ Comp. Rev. Op. 3, 7, 164 CRD-6-82 (Aug. 16, 1985). The earliest date that a termination of benefits may become effective is the date on which the Form 36 is filed.

Torres, supra.

Stare decisis requires that we apply our precedent in Torres to the facts herein, which are indistinguishable from Torres. Accordingly, we vacate Finding, ¶¶ J-M of the Finding and herein direct the trial commissioner to apply the date of the Form 36, January 30, 2007, in place of the earlier date where applicable.

Therefore we affirm the Commissioner’s Finding, except as to the issue of the effective date in which the claimant ceased being temporarily totally disabled. The trial commissioner is bound to apply the date of the Form 36 for that issue.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 Citing Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007) in Nicotera v. Hartford, 5381 CRB-1-08-9 (September 2, 2009), we reiterated that “[w]e have consistently held it is the claimant’s burden to establish a total disability and entitlement to benefits under our statute.” The claimant has an ongoing obligation to prove entitlement to benefits. Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42 (1996). The claimant failed in his burden of persuasion herein. We cannot revisit the amounts to judgment call on the part of the trial commissioner. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999). BACK TO TEXT


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