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CASE NO. 5423 CRB-3-09-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 3, 2010
CONNECTICUT MASON, THE LEARNING CORRIDOR OCIP
HARTFORD INSURANCE GROUP
The claimant was represented by Angelo Cicchiello, Esq., Cicchiello & Cicchiello, 364 Franklin Avenue, Hartford, CT 06114.
Respondents Connecticut Mason, The Learning Corridor OCIP and Hartford Insurance Group were represented by Anne Kelly Zovas, Esq., and James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the January 21, 2009 Finding and Dismissal of the Commissioner acting for the Fifth District was heard on August 28, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Randy L. Cohen.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 21, 2009 Finding and Dismissal of the Commissioner acting for the Fifth District. We find no error and affirm the decision of the Commissioner.1
The following factual findings are pertinent to our review. On October 29, 2002, the claimant suffered fractures of the cervical spine, lumbar spine, and right shoulder and a right inguinal hernia when he fell approximately twenty-five to thirty-five feet from scaffolding while in the employ of Connecticut Mason, The Learning Corridor OCIP. Following the accident, the claimant was hospitalized until November 1, 2002 and then transferred to an acute rehabilitation facility where he remained for two weeks. Pursuant to a voluntary agreement approved by the Commission on June 15, 2004, the parties agreed that the claimant had reached maximum medical improvement on July 29, 2003 having sustained a ten percent (10%) permanent partial disability to his lumbar spine, a fifteen percent (15%) permanent partial disability to his cervical spine, and a seventeen percent (17%) permanent partial disability to his right master arm.
At trial, the claimant testified at length regarding his physical condition, contending that he has been totally disabled since the accident and currently suffers from tremors and shoulder pain which did not exist prior to the accident. He testified that he can only stand for ten to fifteen minutes at a time and that he could “never” remain sitting at a desk for two hours continuously. June 3, 2008 Transcript, p. 23. The claimant stated that his wife helps him dress and that he spends most of his day watching television. The claimant also indicated that he does not attend social events and “cannot work because he is in too much pain.” Findings, ¶ 26. See also June 3, 2008 Transcript, pp. 25-26. The claimant testified that he could not complete a job application in English and does not read English newspapers. The claimant denied being able to work in the capacity of a parking lot attendant, coat room attendant, small parts inspector, or janitor. The claimant also testified that because of his constant pain, he began to experience symptoms of depression. Finally, the claimant “stated that he has been walking with the aid of a cane since 2003 because, without it, he would start feeling dizzy and fall.” Findings, ¶ 31. See also June 3, 2008 Transcript, p. 30.
Because of a complaint of ongoing right shoulder tremors, the claimant saw Peter Wade, M.D., on November 16, 2004 for a neurological consult. Dr. Wade concluded that the claimant did not have a neurologic problem. The claimant moved to Worcester, Massachusetts at the end of 2004 and began treating with doctors in that geographic location. He underwent arthroscopic surgery to his right shoulder on September 16, 2005, but his symptoms returned after several months, and on April 27, 2006, Nicola A. DeAngelis, M.D., indicated that the claimant’s “best option” was a hemiarthroplasty or a total shoulder replacement. Claimant’s Exhibit A. The claimant then consulted Michael A. Brown, M.D., regarding the risks and benefits of the proposed surgery, and on May 15, 2006, Dr. Brown reported the claimant would “schedule surgery sometime in August or at his convenience.” Id. However, when the claimant saw Theodore Shoemaker, M.D., on July 20, 2006, the doctor noted that the claimant “at this time is not interested in any surgical intervention.” Claimant’s Exhibit N.
The claimant underwent a respondent’s medical examination with Peter Barnett, M.D., on September 19, 2006.2 Dr. Barnett diagnosed the claimant with degenerative arthritis in the right shoulder and opined at his deposition that the reasonable treatment option for that condition is surgical shoulder joint replacement. Dr. Barnett testified that if the claimant “decides to live with the present condition and not opt to proceed with surgery, his condition won’t improve, but it can actually get worse.” Findings, ¶ 43. See also Respondents’ Exhibit 1, pp. 10, 11. However, Dr. Barnett also stated that if the claimant had the surgery, he “would have at least 90% of normal function, be able to raise the arm overhead, and essentially a complete elimination of his pain.” Findings, ¶ 43. See also Respondents’ Exhibit 1, pp. 7, 8. “The improvement would be – if he had a good result – would be dramatic.” Id., at 8. Dr. Barnett also opined that the claimant had a work capacity and could “use his right arm below the shoulder level in a nonrepetitive fashion with a 5pound lifting restriction.” Findings, ¶ 42. See also Respondents’ Exhibit 1, p. 7.
The claimant returned to Dr. Brown on January 26, 2007, at which time Dr. Brown noted the claimant was still experiencing tremors in his upper extremities and referred the claimant to another neurologist. The claimant saw Banu Sundar, M.D., on September 1, 2007, who reported that neither an MRI of the cervical spine nor EMG studies demonstrated “evidence of radiculopathy or changes . . . that could explain the right upper extremity symptoms.” Claimant’s Exhibit I. Dr. Brown then referred the claimant to Dr. Goss, whom the claimant saw on May 14, 2008 and May 18, 2008. In his report dated May 14, 2008, Dr. Goss indicated that he told the claimant he essentially had two options: either live with his current symptoms and adjust his lifestyle accordingly, including the use of over-the-counter anti-inflammatory medications, or undergo a right shoulder arthroplasty. Claimant’s Exhibit U.
On February 5, 2004, the claimant underwent a vocational assessment conducted by a certified rehabilitation counselor at CRC Services in Longmeadow, Massachusetts in which the counselor concluded the claimant had a work capacity. Respondents’ Exhibit 2, p. 15. However, the claimant introduced into the record a vocational assessment prepared on the basis of a records review by a certified vocational rehabilitation specialist at the Center for Career Development in Tolland, Connecticut on July 27, 2008 in which the rehabilitation specialist concluded that the claimant was unemployable in light of his “physical injuries, together with his limited education and limited abilities with the English language.” Findings, ¶ 71. See also Claimant’s Exhibit W, p. 3.
Following four sessions of formal hearings, the trial commissioner concluded that the claimant was not totally disabled on or after April 26, 2005 and had had a light-duty work capacity since that date. The trial commissioner determined that the claimant had been paid all permanent partial disability and § 31-308a C.G.S. benefits owed to him and dismissed the claim for temporary total disability benefits. The trial commissioner also found there was “competent and persuasive medical evidence to indicate that the Claimant is limiting his recovery by not opting for right shoulder replacement surgery,” Findings, ¶ F, and “competent and persuasive medical evidence to indicate that the Claimant’s right shoulder condition may worsen as a result of his refusal to have right shoulder replacement surgery.” Findings, ¶ G. As such, the trial commissioner determined that the claimant has “demonstrated an unwillingness to submit to right shoulder replacement surgery,” Findings, ¶ C, despite the respondents having authorized same. Finally, the trial commissioner concluded “[t]here is no competent and persuasive medical evidence indicating that the Claimant’s need for psychiatric treatment is causally related to his injury of October 29, 2002,” Findings, ¶ N, and dismissed the claim for compensability of the psychiatric treatment.3
The claimant has appealed the trial commissioner’s decision citing several claims of error.4 First, the claimant alleges the trial commissioner erred in failing to award the claimant temporary total disability benefits commencing on April 25, 2005 and continuing through January 21, 2009, the date of the trier’s decision. Second, the claimant argues that the trial commissioner erroneously found that the claimant was unwilling to proceed with right shoulder replacement surgery. Third, the claimant contends the trial commissioner applied an incorrect legal standard in assessing the probative value of the medical evidence relative to the shoulder surgery and the matter should therefore be remanded with instructions to the trier “to apply the correct legal standard(s) and/or open the record for additional testimony and medical records.” Appellant’s Brief, p. 1. Finally, the claimant cites as error the trier’s decision to dismiss his claim for compensability of his psychiatric disorder.5
The standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions is well-settled.
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 v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).
We begin our analysis with the claimant’s contention that the trial commissioner’s failure to award the claimant temporary total disability benefits commencing on April 25, 2005 and continuing through the date of the trier’s decision, January 21, 2009, constituted error. We are of course cognizant that the burden of proving eligibility for temporary total disability benefits lies squarely with the claimant. A “plaintiff is entitled to total disability benefits under General Statutes § 31-307(a) only if he can prove that he has a ‘total incapacity to work.’”6 D’Amico v. Dept of Correction, 73 Conn. App. 718, 724 (2002), cert. denied, 262 Conn. 933 (2003). “The plaintiff [bears] the burden of proving an incapacity to work, and ‘total incapacity becomes a matter of continuing proof for the period claimed.’” Dengler, supra, at 454, quoting Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42 (1996).
In the instant matter, our review of the record indicates that the claimant did not introduce one medical report in which a physician opined that the claimant was totally disabled. In notes dated February 26, 2003, March 10, 2003, and May 1, 2003, respectively, Drs. Kime, Miranda and Lieponis found the claimant had a light-duty capacity with restrictions. Claimant’s Exhibit A. On March 25, 2003, Dr. Kime again reported that the claimant had a light-duty work capacity with restrictions, and on June 18, 2003, Dr. Kime opined that the claimant had reached maximum medical improvement and assigned the claimant a permanent partial impairment of ten percent (10%) of the lumbar spine and fifteen percent (15%) of the cervical spine. Dr. Kime stated that the claimant was “capable of light duty work only with no repetitive bending or lifting and lifting greater than 25 pounds.” Id.
Similarly, radiologic studies performed on the claimant’s spine also failed to substantiate a claim of total incapacity. An MRI of the cervical spine conducted on February 18, 2003 found evidence of “[m]ild to moderate degenerative changes in the lumbosacral spine with a central protrusion at L4-L5 with no significant central stenosis. No significant central or foraminal stenosis at other lumbar levels.” Id. Of slightly more recent vintage, an MRI performed on June 14, 2006 revealed “[m]inimal degenerative changes with no significant canal or foraminal stenosis,” id., and a follow-up MRI conducted on July 6, 2007 made essentially the same findings and concluded there had been “[n]o significant interval change since the prior study.” Claimant’s Exhibit B. Finally, a discogram performed on April 25, 2007 revealed “severe pain at 5-1 and no significant pain and [sic] 45;” however, the physician concluded that “[b]ecause of the discrepancy and lack of any corroborating radiographic findings, I would not recommend any surgical intervention,” Claimant’s Exhibit A, and advised the claimant seek a referral to a pain treatment center. Id.
Despite the absence of persuasive medical evidence in the record which would substantiate a finding of total disability, the claimant asserts that the trial commissioner erroneously based his decision solely on the claimant’s shoulder symptoms and failed to take into account such factors as the claimant’s “(1) age; (2) educational background; (3) inability to speak and read the English language; (4) work experience; (5) cumulative effect of all his workrelated accidents; (6) and mental state.” Appellant’s Brief, p. 8. In essence, the claimant would appear to be raising an Osterlund claim derived from the following wellsettled principle articulated by our Supreme Court in Osterlund v. State, 135 Conn. 498 (1949):
A finding that an employee is able to work at some gainful occupation within his reasonable capacities is not in all cases conclusive that he is not totally incapacitated. If, though he can do such work, his physical condition due to his injury is such that he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.
Id., at 506-507.
In support of this claim, the claimant submitted into the record an “Initial/Discharge Team Plan of Care Report” prepared by the Easter Seals Greater Hartford Rehabilitation Center, Inc., on August 3, 2004. See Claimant’s Exhibit F. The report indicates that the full number of hours normally allocated for the evaluation was abbreviated because of the claimant’s physical limitations and that by the seventh day, “the client presented as extremely fatigued and attempting to cope with heightened discomfort.” Id., at 2. Ultimately the decision was made to terminate the evaluation, “with the knowledge that the client is clearly unable to work at this time.” Id. In addition, as previously mentioned herein, the record contains a follow-up report dated July 27, 2008 prepared by the same specialist for the Center for Career Development who prepared the initial report of August 3, 2004. See Claimant’s Exhibit W. The specialist, having reviewed a dossier of medical reports, the transcript of the deposition of Peter Barnett conducted on June 11, 2007 (See Respondent’s Exhibit 1), the Easter Seals evaluation of August 3, 2004 (See Claimant’s Exhibit F), and some unspecified psychiatric notes, concludes that the claimant is “totally unemployable.” Claimant’s Exhibit W, p. 3.
However, the record also contains a “Vocational Assessment & Labor Market Survey Report” prepared by a certified vocational rehabilitation specialist at the Center for Career Development on November 14, 2003 in which the specialist identified a number of relatively sedentary occupations, primary in the area of light assembly, which in his estimation the claimant was capable of performing. Claimant’s Exhibit G, p. 7. The specialist, although noting that the claimant’s injuries had “reduced his work options from the full range of strength capacities (i.e. sedentary to very heavy) to only the light and sedentary ranges,” id., at 10, nevertheless concluded that the claimant “is an older gentleman, who can now do a limited range of light to sedentary work.” Id. Finally, the record also contains an “Employability Evaluation & Wage Capacity Determination Report” prepared by a certified rehabilitation counselor at CRC Services on February 5, 2004. See Respondents’ Exhibit 2. The author, having reviewed the claimant’s medical file, conducted a face-to-face interview with the claimant, and performed a series of vocational tests, concluded the claimant “remains capable of performing simple entrylevel work, perhaps more.” Id., at 15. The counselor also noted that the claimant’s “self-reported limitations are much more confining than what his treating physicians have imposed.” Id., at 16.
It is clear that the trier was presented with conflicting vocational expert testimony in the instant matter. The claimant asserts that because the respondents did not introduce a vocational assessment demonstrating that the claimant had a work capacity at the time of the formal hearing, or within more than three (3) years of the formal hearing, the trier erred in relying on the vocational reports contained in the record. We disagree. It is well-settled that the responsibility to assess the evidence provided by expert witnesses and draw conclusions therefrom rests solely with the trier. “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted.) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).
Moreover, in addition to the medical reports mentioned previously herein in which the claimant was found to have a work capacity, Dr. Barnett, in his deposition of July 11, 2007, also opined that when he evaluated the claimant in a Respondents’ Medical Examination on September 19, 2006, the claimant possessed a work capacity, albeit with restrictions.7 Respondents’ Exhibit 1, p. 7. We note that the claimant testified at length over the course of three formal hearings regarding his physical limitations since the date of his accident. Nevertheless, the conclusions drawn by the trier find substantial support in the record and it is not the province of this board to overturn such conclusions on appeal.
The claimant also identifies as error the trial commissioner’s failure to award temporary total benefits for the day of and some period following the claimant’s shoulder surgery on September 16, 2005. The claimant further asserts that “the Commissioner came to this conclusion without the respondent-appellee providing any medical documentation whatsoever that the claimant-appellant was not temporarily totally disabled following this surgery.” (Emphasis added.) Appellant’s Brief, p. 8. We find this claim of error to be without merit. First, it is axiomatic that “[t]he burden of proof in a Workers’ Compensation claim for benefits rests with the claimant.” Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006). Our review of the record indicates that the only medical reports contained therein stemming from the claimant’s surgery of September 16, 2005 are the operative report and two follow-up notes dated September 28, 2005 and November 3, 2005, none of which address the work capacity of the claimant. Claimant’s Exhibit A. Absent probative evidence establishing a claim for total disability, it was not incumbent on the respondents to produce evidence disputing same.
Second, we believe it was well within the power of the claimant to have procured a report clarifying the period(s) of total disability following the surgery of September 16, 2005 and submitted it into the record. The claimant failed to do so. Thus, while it is eminently reasonable to infer that the claimant probably did experience a period of total disability associated with the surgery performed on his right shoulder on September 16, 2005, we decline to ascribe to the trial commissioner the duty to award, sua sponte, temporary total benefits absent appropriate documentation of same, given that any such award would be totally speculative. “One can only expect the trier of fact to render a decision based on what evidence actually says, not what it should have said.” Ben-Eli v. Lowe’s Home Improvement, 5006 CRB-3-05-10 (November 16, 2006).
The claimant also argues that the trial commissioner erred in concluding the claimant “has demonstrated an unwillingness to submit to right shoulder replacement surgery,” Findings, ¶ C, and, as a corollary to this argument, asserts the trial commissioner utilized an incorrect standard in determining whether the proposed medical treatment was “reasonable,” pursuant to § 31-294e(b) C.G.S.8 We disagree with both contentions. “Whether a proposed surgical procedure is reasonable under the terms of the statute is a question of fact for the commissioner to resolve.” Pagliarulo v. Bridgeport Machines, Inc., 20 Conn. App. 154, 158 (1989). Section § 31-294e(b) C.G.S. “is concerned not with the reasonableness of the plaintiff’s refusal to accept treatment, but with the reasonableness of the ‘medical, surgical or hospital or nursing service’ available to the plaintiff.” Id., quoting Acquarulo v. Botwinik Bros., Inc., 139 Conn. 684, 686 (1953). Resolution of this inquiry:
is not necessarily a medical matter only, on which expert testimony would be necessary, but may also be affected by a consideration of the surrounding circumstances as the trier of fact finds them . Such circumstances may include the plaintiff’s age, medical history, previous course of treatment and its success or failure, and whether the proposed medical procedure ‘involves real danger and suffering without fair assurance of effecting an improvement or restoration of health.’
Pagliarulo, supra, at 159, quoting Acquarulo, supra, at 690 (Baldwin, J., concurring).
Thus, “[i]n the absence of proof that the measure of recovery to be expected from the medical and surgical procedure recommended did not warrant the danger and suffering involved,” Acquarulo, supra, at 690 (Baldwin, J., concurring), “an injured employee should not be denied compensation for refusing to submit to it, for in this event his refusal could not be labeled unreasonable.” Id. However, “[t]o invoke the sanction of Sec. 31-294e(b), it is sufficient that the claimant has made a decision not to undergo reasonable medical procedures. The requisite ‘refus[al] to accept and the fail[ure] to obtain’ reasonable medical services arises when a claimant has chosen not to avail herself of reasonable medical assistance.” D’Anna v. Kimberly-Clark Corporation, 12 Conn. Workers’ Comp. Rev. Op. 194, 195, 1580 CRB-7-92-12 (May 4, 1994).
Turning to the instant matter, our review of the record reveals ample support for both the trier’s conclusion that the claimant “demonstrated an unwillingness” to follow through with the shoulder replacement surgery” and for our determination that the trier utilized the appropriate standard in reaching this assessment. The record indicates that the issue of shoulder replacement surgery was apparently broached for the first time on April 27, 2006, when the claimant reported to Dr. DeAngelis that his shoulder pain had returned following the arthroscopy in September 2005 and Dr. DeAngelis told the claimant that his “best option at this point is consideration for a hemiarthroplasty or a total shoulder replacement.” Claimant’s Exhibit A. The claimant indicated he was interested in pursuing this option. Id. When the claimant saw Dr. Brown for an outpatient consultation on May 15, 2006, the doctor discussed the risks and benefits of the procedure and was apparently under the impression that the claimant would “schedule surgery for sometime in August or at his convenience.” Id. [5/15/2006 Outpatient Consultation Report] However, because the claimant was also manifesting upper extremity tremors at that time, the doctor elected to obtain and MRI scan and EMG test prior to scheduling the surgery. Id. [5/16/2006 Clinic Note]
On July 20, 2006, the claimant was seen by Theodore Shoemaker, M.D., who indicated that the claimant “has been offered shoulder surgery but at this time is not interested in any surgical intervention.” Claimant’s Exhibit N. On July 31, 2006, the claimant presented to Tara Rizvi, M.D., whom he informed that he was considering shoulder surgery but had not yet made a decision. Claimant’s Exhibit O. The claimant did not return to Dr. Brown until nearly six months later, on January 26, 2007, at which point Dr. Brown indicated that the claimant had not undergone either the EMG test or the MRI scan.”9 Claimant’s Exhibit A. The claimant reported that he was still experiencing tremors and Dr. Brown referred the claimant for a neurology consultation. The claimant again returned to Dr. Brown on April 27, 2007, at which time he informed Dr. Brown that he still had not seen a neurologist. Dr. Brown stated in his report of this date that he “emphasized the need to see the neurologist.” Id. The claimant next presented at the University of Massachusetts Medical Center Neurological Clinic on September 1, 2007, ostensibly for a follow-up appointment, at which point Banu Sundar, M.D., reported that the MRI of the cervical spine and EMG “shows no evidence of radiculopathy or changes within the that [sic] could explain the right upper extremity symptoms.”10 Claimant’s Exhibit I, p. 2. However, Dr. Sundar discussed the possibility of performing an MRI of the brain “to look for any lesions in the left hemisphere that would explain the right shoulder symptoms.” Id.
The claimant did not visit the University of Massachusetts neurology clinic again until April 28, 2008, at which time he was seen by Norman E. Beisaw, M.D. Dr. Beisaw reported that Dr. Brown had referred the claimant to Dr. Goss for shoulder replacement surgery but the claimant “did not follow through with these recommendations.” Claimant’s Exhibit T, p. 1. Dr. Beisaw, noting that the claimant’s shoulders remained symptomatic, also recommended that the claimant consult Dr. Goss to discuss possible shoulder replacement surgery. Id., at 2. The claimant finally presented to Dr. Goss on May 14, 2008, more than two years after Dr. DeAngelis had originally recommended the claimant explore shoulder replacement surgery. As mentioned previously herein, Dr. Goss explained that the claimant could either continue to live with his symptoms or proceed with the surgery. Claimant’s Exhibit U. Dr. Goss noted that the claimant “is reasonably amenable to proceed surgically but needs to think it over.” Id.
At trial, the claimant testified at several junctures that he in fact was in favor of the shoulder surgery but the doctors did not want to proceed. February 6, 2008 Transcript, p. 22, 27-29. The claimant also stated that he had wanted Dr. Brown to perform the shoulder surgery but that Dr. Brown had referred him to someone else and the claimant did not follow through with the referral because he was only interested in having Dr. Brown conduct the surgery. Id., at 38-39. However, the claimant also confirmed that on May 28, 2008, he told Dr. Goss that he wanted to postpone the surgery until he had “finish[ed] with the Commissioners” and taken a trip to Greece to visit his daughter.11 June 3, 2008 Transcript, pp. 13-14. The claimant repeatedly denied having refused surgery, id., at 43, 54, 55, 57, and blamed the delay in August 2007 on Dr. Brown’s referral to a neurologist. Id., at 44-45. However, under crossexamination at the formal hearing of June 3, 2008, the claimant was still unable to clarify whether he had decided to proceed with the surgery.12 Id., at 45.
Based on the foregoing, we find that the claimant, at the very least, “demonstrated an unwillingness to submit to right shoulder replacement surgery.” Findings, ¶ C. The medical reports contained in the record consistently reflect the claimant’s indecision about proceeding with the shoulder replacement surgery despite recommendations from a number of physicians to explore the option. As of the formal hearing held on June 3, 2008, more than two years after shoulder replacement surgery had been first recommended by Dr. DeAngelis, the claimant still appeared to be vacillating despite ongoing symptoms which by his own account were significantly and negatively impacting the quality of his life. Given that the record clearly supports the trial commissioner’s conclusion that the claimant “demonstrated an unwillingness” to proceed with the surgery, we will not overturn this finding on appeal.
As a corollary to the preceding argument, the claimant also asserts that the trial commissioner utilized an incorrect standard of review by failing to find that the shoulder replacement surgery was “reasonable and necessary,” instead concluding that the evidence in support of the surgery was “competent and persuasive.” The claimant alleges on the one hand that the trier should have determined whether the claimant acted “reasonably,” Appellant’s Brief, p. 10., (an issue which we have addressed and disposed of previously herein) and also asserts that the trier failed to specifically find whether the shoulder surgery was “reasonable.” Id. The claimant appears to be engaging in an exercise in semantics which we are disinclined to indulge.
As mentioned previously herein, in addition to the medical reports contained in the record in which a number of doctors recommended the claimant undergo the surgery, we also have the testimony of Peter Barnett, M.D., from his deposition held on June 11, 2007. See Respondents’ Exhibit 1. Dr. Barnett testified that in his opinion, the shoulder replacement surgery was a “reasonable option” for the claimant when he saw the claimant for a Respondents’ Medical Examination on September 19, 2006. Respondents’ Exhibit 1, pp. 5, 24. Explaining that “[t]he purpose of the procedure is to relieve pain and improve function,” id., at 6, Dr. Barnett acknowledged that the claimant had expressed to him that “he was unhappy by with [sic] his life and had extreme subjective complaints,” id., and opined that with successful shoulder replacement surgery, the claimant would have ninety percent (90%) of his shoulder function restored along with “essentially complete elimination of his pain.” Id., at 7-8. Although Dr. Barnett conceded that the decision to proceed with any surgery always belongs to the patient, id., at 10, he testified that in this particular case, the claimant’s condition would not improve and could worsen to the point of becoming inoperable. Id., at 11, 24. Dr. Barnett agreed that delaying the surgery in order to conduct an investigation into the source of the claimant’s tremors was probably warranted, id., at 14, but went on to testify that given that “statistically 90 percent of people that have shoulder replacements have excellent results,” id., at 17, if the claimant “elects not to do it, it would be foolish; but that’s still his decision.” Id., at 25.
We believe the foregoing testimony by Dr. Barnett more than adequately supports the trial commissioner’s finding that “[t]here is competent and persuasive medical evidence to indicate that the Claimant is limiting his recovery by not opting for right shoulder replacement surgery,” Findings, ¶ F, and “[t]here is competent and persuasive medical evidence to indicate that the Claimant’s right shoulder condition may worsen as a result of his refusal to have right shoulder replacement surgery.” Findings, ¶ G. It may be reasonably inferred that it appeared to the commissioner that the claimant had failed to avail himself of “reasonable medical assistance,” D’Anna, supra, in anything approaching a timely fashion, even if allowance is made for the necessary delays associated with the investigation into the cause of the claimant’s tremors. As such, we will not overturn the trial commissioner’s findings on this issue.
Finally, the claimant alleges that the trier’s decision to dismiss the psychiatric claim in this matter constituted error. We find this claim to be without merit. Apart from the claimant’s testimony at trial, the record contains only two medical reports, both authored by Carl E. Fulwiler, M.D., pertaining to the claimant’s psychiatric claim. The first, dated August 15, 2007, states that the claimant “had presented initially in July with complaint of depression related to chronic severe pain since he sustained a number of injuries in a fall at work in 2002.”13 Claimant’s Exhibit D, p. 1. Although Dr. Fulwiler acknowledges that the claimant “is also involved in legal dealings regarding disability and liability,” id., at no point in the report does the doctor address any possible causative link between the claimant’s depression and his workrelated injuries. In his second report, dated August 29, 2007, Dr. Fulwiler writes that the claimant “remains depressed, cries easily, is very sensitive [and] feels this is related to circumstances in his life including fighting with disability. 4" Id., at 1. However, again, at no point in this report does the doctor attempt to establish a causative link between the claimant’s symptoms and his work-related injuries. In fact, claimant’s counsel stated at trial that he “had written to Doctor Fulwiler specifically asking him certain opinions and he denied getting involved.” June 3, 2008 Transcript, p. 60. In addition, the respondents indicate in their brief that they scheduled a psychiatric examination with Dr. Selig but the claimant did not attend and the respondents did not reschedule the examination “since the claimant never produced a valid prima facie claim.” Appellees’ Brief, p. 18.
We agree with the respondents. “A claimant has the burden of proving every element of [a] claim, such as the existence of a physical disability and the relationship between that disability and an injury that has allegedly occurred at the workplace.”14 Duddy, supra, citing Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). Then, “[i]t is up to the commissioner to determine whether a claimant has offered sufficient evidence to establish a disability within a reasonable degree of medical probability.” Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003), citing Duddy, supra; Phaiah, supra. Given that “[t]he trial commissioner has the sole authority to decide which, if any, of the evidence is reliable, and he is always free to decide that he does not trust a particular medical opinion or a particular witness’ testimony, even if there does not appear to be any evidence that directly contradicts it,” Duddy, supra, citing Pallotto; supra; Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (January 24, 1997), we find unpersuasive the claimant’s assertion that “[t]he respondent-appellee had absolutely no evidence to contradict [the claimant’s] claim that his ‘major depressive disorder’ was causally related to his work related injuries of 2002.” Appellant’s Brief, p. 21. Therefore, because this board is not empowered to overturn a trier’s evidentiary determinations unless they lack foundation in the record, Duddy, supra; Phaiah, supra, the trial commissioner’s decision to dismiss the claimant’s psychiatric claim must stand.
Having found no error, the January 21, 2009 Finding and Dismissal of the Commissioner acting for the Fifth District Award is accordingly affirmed.
Commissioners Stephen B. Delaney and Randy L. Cohen concur in this opinion.
1 We note that three requests for extensions of time were filed and granted during the pendency of this appeal. BACK TO TEXT
2 In his Findings, ¶ 36, the trial commissioner indicated that this examination occurred on September 16, 2006; we consider the incorrect date a scrivener’s error and, as such, harmless. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT
3 The trial commissioner also determined that because all payments made to the claimant subsequent to the expiration of the permanent partial disability award were made without prejudice, the respondents were not required to file a Form 36 to discontinue those benefits. As this issue was not litigated on appeal, we decline to address it at any length herein. BACK TO TEXT
4 We note that the claimant did not file a Motion to Correct; as a result, “we must accept the validity of the facts found by the trial commissioner and this board is limited to reviewing how the commissioner applied the law.” Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6, 4948 CRB-2-05-5 (July 26, 2006). BACK TO TEXT
5 On September 11, 2009, following oral argument held in this matter on August 29, 2009, the Workers’ Compensation Commission received a submission directly from claimant consisting of correspondence addressed to Chairman John A. Mastropietro along with copies of correspondence from claimant’s counsel to the claimant dated March 13, 2007, several medical reports for both the claimant and his wife, and a disability evaluation form from the University of Massachusetts Disability Evaluation Services. Insofar as this submission does not appear to satisfy the statutory requirements for a Motion to Submit Additional Evidence, we decline to admit the submitted materials into the record. See Administrative Regulation § 31-301-9. BACK TO TEXT
6 Section 31-307(a) C.G.S. (Rev. to 2001) states, in pertinent part, “[i]f any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of his average weekly earnings as of the date of the injury, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both . . . .” BACK TO TEXT
7 Dr. Barnett stated that the claimant could use his right arm in a “non-repetitive fashion” below shoulder level with a five-pound lifting restriction. Respondents’ Exhibit 1, p. 7. BACK TO TEXT
8 Section 31-294e(b) C.G.S. (Rev. to 2001) states that “[i]f it appears to the commissioner that an injured employee has refused to accept and failed to obtain reasonable medical and surgical aid or hospital and nursing service, all rights of compensation under the provisions of this chapter shall be suspended during such refusal and failure. BACK TO TEXT
9 The record does indicate that the claimant had an MRI of his lumbar spine on June 14, 2006. Claimant’s Exhibit A. BACK TO TEXT
10 The report of September 1, 2007 indicates that the claimant had previously been seen at the clinic on June 25, 2007 but the report from that earlier visit does not appear to have been introduced into the record. BACK TO TEXT
11 The claimant stated, “I told the doctor – first, I told the doctor that I’m going to wait until I finish with the Commissioners, and I told him after I finish all the examination I like to go to Greece because I have – my daughter’s there and I never seen them for – six years that I never visit them. Because if I have the operation now, it’s going to take at least, for recovery, six months.” June 3, 2008 Transcript, pp. 13-14. BACK TO TEXT
12 The testimony was as follows:
Q: Well, in other words, you haven’t made up your mind again about this surgery?
A: Depends on me to answer yes or no.
Q: So you haven’t decided yet whether to have it or not?
A: Why should I say to decide yes or no?
Q: When you testified that you were – you wanted to wait for the Commissioner’s decisions, what was your thinking in that regard? Why would the Commissioner’s decision affect medical attention, like surgery for your shoulder?
A: I told my doctor when I decide I was going to go to him and give him the answer, and I’m going to give the telephone number of a doctor that I supposed to see.
Q: I’m not sure that’s responsive.
June 3, 2008 Transcript, p. 45. BACK TO TEXT
13 There is no report from the July visit in the record. In addition, Dr. Fulwiler also alludes in his reports to the claimant’s ongoing therapy with Dr. Marc Spisto; however, the record is devoid of any reports authored by Dr. Spisto. BACK TO TEXT
14 This burden is particularly heavy for claimants seeking workers’ compensation benefits for a mental or emotional impairment, as such injuries are specifically excluded from the Workers’ Compensation Act unless they arise from a physical injury or occupational disease. See § 31-275(16)(B)ii C.G.S. (Rev. to 2001). BACK TO TEXT