State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Damon v. VNS of CT/Masonicare

CASE NO. 5413 CRB-4-08-12



DECEMBER 15, 2009











The claimant was represented by Mark S. Carron, Esq., Carron & Fink, 1698A Post Road East, Peppermill Office Building, Westport, CT 06880.

The respondents were represented by Marie Gallo-Hall, Esq., Montstream & May, 655 Winding Brook Drive, Glastonbury, CT 06033-6087.

This Petition for Review from the December 5, 2008 Finding and Order of the Commissioner acting for the Fourth District was heard October 23, 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 appeals from a Finding and Order approving a Form 36 terminating her temporary total disability benefits. She asserts the trial commissioner erred in his decision. In considering this appeal we must follow our precedent, in which “[w]e have consistently held it is the claimant’s burden to establish total disability and entitlement to benefits under our statute.” Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). Our review of the Finding and Order demonstrates the claimant failed to sustain her burden of proof. Moreover, the commissioner cited probative evidence, in particular a commissioner’s examination, which supported the finding of a work capacity. Therefore we affirm the trial commissioner and dismiss this appeal.

The trial commissioner reached the following findings of fact at the conclusion of the formal hearing. The claimant did not file a Motion to Correct. Therefore on appeal, we must accept the validity of the facts found by the trial commissioner in this matter. Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008); Claros v. Keystone Pipeline Services 5399 CRB-1-08-11 (October 28, 2009) and Crochiere v. Board of Education, 227 Conn. 333, 347 (1993).

The claimant sustained compensable injuries to both shoulders on March 31, 2000. A Voluntary Agreement was approved in this matter by the Workers’ Compensation Commission on July 13, 2001. The claimant is a Registered Nurse with a Bachelor’s Degree. She has performed both direct care as well as administrative duties. She is able to drive a car and use a computer. She testified she has good days and bad days and that she is unable to work.

The claimant offered evidence from Susan Hage, D.O. Dr. Hage reported on May 3, 2004 that “the claimant’s prognosis was fair,” noting she could sit for about an hour, stand for about an hour, and stand or walk for six hours with an alternative position every 30 minutes. On October 27, 2004 Dr. Hage said the claimant’s work capacity “was severely limited by her pain and functional ability.” On May 23, 2005 Dr. Hage determined the claimant was “totally disabled, i.e., unable to perform any job or unable to practically perform or obtain a job.” She determined this due to the claimant’s restrictions, which included frequent rest and stretch breaks. Dr. Hage did not believe the claimant’s condition had significantly changed since April 23, 2003. She associated the claimant’s limitations to pain directly related to her shoulders. Dr. Hage did indicate she deferred to vocational rehabilitation experts whether the claimant could have sustained employment.

The respondents had the claimant examined twice by their expert, Dr. Peter K. Esponnette. Dr. Esponnette reported on July 18, 2003 that while he did not believe the claimant could work as a Registered Nurse, she was capable of “very limited activities.” On September 30, 2005, Dr. Esponnette reported the claimant had not had any “profound changes” in her condition since the prior examination and the claimant considered herself “to be totally disabled, though she is capable of carrying out some basic activities.” Dr. Esponnette, however did not consider the claimant totally disabled.

Steven H. Schutzer, M.D., performed a commissioner’s examination of the claimant on April 28, 2006. His report opined that the claimant was capable of performing full-time light duty work. Two vocational experts offered differing opinions on the claimant’s work capacity. Hank Lerner, M. Ed., NCC, LPC, opined that the claimant did not have a work capacity. He based his conclusion on the opinions of Dr. Hage and Dr. Esponnette, the claimant’s age and long absence from the job market, and her narcotic pain medication. Hildegarde Covens-Heary MA, CRC, CLCP, testified to the contrary. On January 29, 2007 and October 16, 2007 Ms. Covens-Heary identified multiple employers hiring for positions compatible with the claimant’s qualifications and work capacities. The commissioner also noted that the Forms 36 filed on November 5, 2003 and October 4, 2004 were not objected to within a timely fashion.

After considering those subordinate facts the trial commissioner reached his conclusions. He determined the claimant did not sustain her burden of proof that she was totally disabled on or after November 5, 2003. He granted the Form 36 filed on November 5, 2003 as of the date it was filed. He also granted the October 4, 2004 Form 36 as of the date it was filed. He denied a Form 36 filed on April 10, 2006.

The trial commissioner’s reasoning was as follows. He did not find the claimant’s testimony as fully credible and persuasive as to the issues presented. The commissioner found that the claimant was a Registered Nurse who was capable of driving a car and using a computer. He did not find the testimony of the claimant’s supportive witnesses, Dr. Hage or Hank Lerner, persuasive. On the other hand, he specifically found the commissioner’s examiner, Dr. Schutzer “fully persuasive and credible.” He found the respondents’ vocational expert, Ms. Covens-Heary, “persuasive as to the issues presented.” Both witnesses opined the claimant had a work capacity.

Prior to considering the merits of this appeal, we must address the procedural issues raised by the respondents. They have filed a Motion to Dismiss under Practice Book § 85-1 asserting that the claimant’s appeal was untimely. They note that the claimant did not file either a Motion to Correct the Finding or her Reasons for Appeal within the time limits outlined under Sec. 31-301-2 or Sec. 31-301-4 of this Commission’s Administrative Regulations. We deny the respondents’ Motion to Dismiss, however, for the reasons stated in Vitoria v. Professional Employment & Temps, 5217 CRB-2-07-4 (April 4, 2008).

. . . we are reluctant to dismiss the claim on jurisdictional grounds when we can find no evidence that the respondents were prejudiced by the claimant’s actions. Since a timely Petition for Review was received from the claimant, we believe Roussel v. Village Gate of Farmington, 4918 CRB-6-05-2 (February 28, 2006) compels us to deny the Motion to Dismiss. We believe some indicia of prejudice to the respondents should generally exist before we dismiss a claim initiated in a timely manner, as the sole dispute herein is over the adequacy of the pleadings. See also Rinaldi v. Tilcon Connecticut, Incorporated, 4981 CRB-3-05-7 (August 30, 2006).

We find no prejudice to the respondents by the manner in which the claimant has commenced her appeal. Therefore, we deny the respondents’ motion. We turn to the merits of the claimant’s argument, which amount to the claim that the evidence presented did not support the trial commissioner’s finding she had a work capacity. In Franklin v. State/Department of Mental Health & Addiction Services, 5224 CRB-8-07-4 (April 11, 2008), we delineated the standard for review in cases dealing with §31-307 C.G.S. claims.

In considering this appeal, we note that we have established a uniform standard for review of cases applying § 31-307 C.G.S. In Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007) we cited 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).
Our inquiry must focus on whether the trial commissioner was presented with sufficient evidence to conclude that the claimant had a work capacity. We note at the outset that we have reiterated that it is the claimant’s burden to prove that they are totally incapacitated. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). The trial commissioner determined the claimant failed to meet this burden, and we must determine whether this conclusion was “clearly erroneous” by lacking evidence, misapplying the law or reaching an improper inference. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).

The trial commissioner specifically credited the commissioner’s examiner, Dr. Schutzer as “fully persuasive and credible” on the issue of whether the claimant had a work capacity. Dr. Schutzer’s April 28, 2006 report stated specifically “the patient is capable of working full time in a light duty capacity.” Dr. Schutzer agreed with the various work restrictions suggested by Dr. Esponnette, and further stated “[i]n my opinion, she is not totally disabled.” Admin. Notice, ¶ 4.

In Carroll v. Flattery’s Landscaping, Inc., 5385 CRB-8-08-10 (September 24, 2009) we outlined the role a commissioner’s examiner plays in a contested matter before this Commission.

The trial commissioner determined that Dr. Druckemiller and Dr. Mushaweh offered the more persuasive and credible evidence on the issue of causation. We note that Dr. Mushaweh was the commissioner’s examiner and “[w]e have previously explained that the usual purpose of a § 31-294f examination is to provide strong guidance to a commissioner,” and “[t]his board favors an articulation when a trial commissioner does not follow that opinion.” Mele v. Hartford, 5286 CRB-1-07-10 (October 10, 2008) citing Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam). While the trial commissioner was not bound to accept Dr. Mushaweh’s opinion, generally he would need to proffer a reason why he found another expert more persuasive. See Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006), Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009), and Alvarez v. Wal-Mart Stores, Inc., 5378 CRB-5-08-9 (July 27, 2009).

While we can reverse a trial commissioner who reaches a decision that is either unsupported by probative evidence or contrary to the law, Neville v. Baran Institute of Technology, 5383 CRB-8-08-10 (September 24, 2009), we can find no legal error herein from the trial commissioner’s reliance on the evidence proffered by the commissioner’s examiner. This is reinforced by the fact that the trial commissioner specifically found the claimant’s testimony not fully credible and persuasive.

In light of the finding that the trial commissioner did not find the claimant fully credible and persuasive, we need not dwell on the claimant’s argument that she was entitled to an award based on the precedent in Osterlund v. State, 135 Conn. 498 (1949). As we previously explained in Leandres, supra, it is a factual determination whether a claimant is unable to earn money “in any occupation he may reasonably pursue.” The claimant had the burden of proving this argument; Hernandez, supra, and her testimony simply did not persuade the trial commissioner.1

We find no error, and herein affirm the Finding and Order. The appeal is dismissed.

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

1 The claimant’s argument regarding Osterlund v. State, 135 Conn. 498 (1949) appears based on her view that the trial commissioner should have credited other factual evidence besides the evidence he did credit on the issue of work capacity. Claimant’s Brief, pp. 5-9. As we previously explained, in the absence of a Motion to Correct we are required to accept the validity of the facts found by the trial commissioner, Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008). BACK TO TEXT

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