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CASE NO. 5440 CRB-5-09-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 2, 2010
ITW ANCHOR STAMPINGS
GALLAGHER BASSETT SERVICES
The claimant was represented by Edward T. Dodd, Esq., The Dodd Law Firm, LLC, Ten Corporate Center, 1781 Highland Avenue, Suite 105, Cheshire, CT 06410.
The respondents were represented by Kevin M. Blake, Esq., Winnick, Vine, Welch & Teodosio, LLC, 375 Bridgeport Avenue, P.O. Drawer 668, Shelton, CT 06484.
This Petition for Review from the February 19, 2009 Finding and Award of the Commissioner acting for the Fifth District was heard September 25, 2009 before Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Christine L. Engel.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter appeal from the award of temporary total disability benefits to the claimant and the denial of four Forms 36 filed with the Commission. On appeal, we conclude the trial commissioner’s decision in this matter was supported by a substantial quantum of probative evidence and cannot be disturbed by an appellate panel. We affirm the Finding and Award and dismiss this appeal.
The trial commissioner found the following facts at the conclusion of the formal hearing. The claimant was born in Italy in 1948 and came to this country in 1971. He had not attended high school. He has been steadily employed as a machinist since arriving in the United States. The claimant incurred a compensable injury to his left non-master shoulder on November 18, 2002. After a series of surgeries and other medical interventions the claimant was able to return to work. The claimant sustained a second compensable injury involving the right shoulder on October 4, 2004. He continued to work until he was operated on by Dr. Michael Kaplan in October 2005. The claimant underwent a second right shoulder surgery with Dr. Kaplan on March 28, 2006.
On April 6, 2006 Dr. Kaplan authored a medical report on the claimant’s condition. He noted the claimant has significant limitations in motion, strength and pain with regard to the right arm/shoulder. As a result of these limitations the claimant was a candidate for light duty with no overhead activities using his right arm or shoulder, and an under shoulder level lifting weight restriction of five to ten pounds. The claimant continued to be prescribed Vicodin and receive physical therapy. Dr. Kaplan later opined in more pessimistic fashion on June 20, 2006 that it was unlikely that the claimant would return to gainful employment in light of his pain and limitations. Dr. Kaplan suggested a Functional Capacity Evaluation would be helpful. The claimant underwent a Functional Capacity Evaluation with REACT Physical Therapy and Aquatic Center on July 11, 2006. Although the evaluation indicated the claimant had the ability to perform in the sedentary physical demand level, on August 1, 2006 Dr. Kaplan suggested that after reviewing the Functional Capacity Evaluation that he believed the numerous shoulder ailments sustained by the claimant would make it doubtful that the claimant will ever be able to return to gainful employment.
The respondents had the claimant examined by their expert, Dr. Myron Shafer, on August 15, 2006 and February 6, 2007. Dr. Kaplan suggested at a deposition that the claimant could perform sedentary work. “He could work with his arms down, as long as his arms were down. In other words, if he was sitting high at a seat and working down below him, he could work.” However, Dr. Shafer also testified that he agreed with what Dr. Kaplan had said in his August 1, 2006 letter as to the claimant’s work capacity.
The claimant underwent a Vocational Assessment with Albert J. Sabella, MS, a certified Vocational Rehabilitation Counselor. Following this examination Mr. Sabella opined in a November 16, 2006 letter that the Functional Capacity Testing indicates a less than sedentary level. After considering the claimant’s age, education, background, abilities and training, Mr. Sabella concluded that the claimant is unemployable for his past work or any work in the general labor market. In a 2008 deposition, Mr. Sabella explained his rationale for concluding the claimant was unemployable, noting significant limitations with regard to “his education, English ability, computer illiteracy,” as well as his work history in the manufacturing industry.
The trial commissioner also considered testimony from the claimant. The claimant testified as to his vocational background, his limited education and his severe physical limitations as a result of his shoulder injuries. He further testified that at sometime in 2006, at the direction of the insurance adjuster, he had tried to find employment without success.
Based on these subordinate facts the trial commissioner concluded the claimant’s testimony was credible and persuasive. She also found Dr. Kaplan’s opinions to be credible and persuasive as to the issues presented; as well as the opinions of Albert Sabella. She was not persuaded by the opinions of Dr. Shafer alleging the claimant had a work capacity. She stated she was “more persuaded” by his opinions as to the claimant’s physical limitations and his agreement with Dr. Kaplan that the claimant was unlikely to return to gainful employment. After reviewing all the facts, including the claimant’s age, severe physical limitations and limited education the trial commissioner concluded the claimant is totally disabled from all forms of gainful employment and that his bilateral compensable injuries are a substantial factor in his total disability. She denied each of the four Forms 36 presented for consideration. The respondents filed a Motion to Correct, which was denied in its entirety. The respondents have now pursued this appeal.
The respondents’ argument is essentially that the evidence in favor of the claimant was insufficient to sustain a finding of total disability based on the standards delineated in Osterlund v. State, 135 Conn. 498 (1949). As for specific issues, the respondents argue the claimant was not directed to seek to improve his English language skills, which in the opinion of the respondents would have opened up sedentary employment opportunities. Upon review, this constitutes a challenge as to how the trial commissioner weighed the evidence. We generally do not find these arguments persuasive in an appellate forum. As we stated in Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007), we must give deference to such decisions in cases involving § 31-307 C.G.S.
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 met 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 credited two expert witnesses, Dr. Kaplan and Albert Sabella, who agreed that the claimant lacked a work capacity. The respondents point to no deficiency in their testimony or qualifications. Instead, they believe that their expert, Dr. Shafer, should have been credited as a persuasive witness. The commissioner was not obligated to credit his opinions, however. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). In addition, they believe the claimant should have been required to improve his English language skills to make himself more marketable. We may properly infer the trial commissioner did not believe this would be a productive exercise.1 As we pointed out in Leandres, supra, “[e]ven when a claimant had some sedentary work capacity, we have determined in some cases the circumstances were such that the claimant could not reasonably maintain the ‘tenets of employability.’ Howard v. CVS Pharmacy, Inc., 5063 CRB-2-06-3 (April 4, 2007).” Id. Leandres also stands for the proposition a claimant’s demeanor evidence may be relevant in the commissioner’s decision. In Leandres the claimant failed to persuade the trial commissioner he was unemployable. In the present case the trial commissioner found the claimant credible and persuasive.
Recently, in Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009), we restated the standard for total disability under Chapter 568. “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 trial commissioner had sufficient probative evidence to conclude the claimant was unable to earn money in any reasonable occupation. We are obligated to affirm her finding.
We find no error, and herein affirm the Finding and Award. The appeal is dismissed.
Commissioners Ernie R. Walker and Christine L. Engel concur in this opinion.
1 The trial commissioner denied the respondents’ Motion to Correct, which sought to find the claimant had a work capacity based on this theory. There is no error in denying a Motion to Correct which seeks to implement the litigant’s view of the case in the stead of the trial commissioner’s. Liano v. Bridgeport, 4934 CRB-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT
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