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CASE NO. 5515 CRB-4-09-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 20, 2010
GRIFFIN HEALTH SERVICES
PMA MANAGEMENT CORPORATION OF NEW ENGLAND
The claimant was represented by Robert M. Brennan, Esq., Carter & Civitello, Woodbridge Office Park,
One Bradley Road, Suite 301, Woodbridge, CT 06525.
The respondents were represented by Terrance M. Brennan, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review from the November 13, 2009 Finding and Decision of the Commissioner acting for the Third District was heard May 21, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter have appealed from an award to the claimant determining that she was entitled to benefits for temporary total disability. They argue that there was insufficient evidence presented to the trial commissioner to sustain this award. We disagree and affirm the Finding & Decision.
The trial commissioner reached the following findings of fact at the conclusion of the formal hearing. The commissioner noted that a voluntary agreement was approved in this matter on July 21, 2005 for a low back injury the claimant sustained on June 12, 2004. Following her injury the claimant began treating with Patrick Mastroianni, M.D., who performed back surgery on the claimant in August 2004. The claimant, who was born in 1939, testified that her back pain remains chronic but intermittent and that she has problems doing household chores. She also testified to weakness in her left leg and problems walking.
Her treating physician reported on November 22, 2004 that the claimant had made “tremendous progress” and on November 23, 2005 he reported that while “there had been excellent relief of her radicular pain” there was also “a residuum of back pain.” Dr. Mastroianni stated that while a spinal fusion could improve this, there was a high rate of complications for this procedure due to the claimant’s age and he did not recommend it. He thought physical therapy was “worth a try” and set the claimant up for this modality.
Subsequent to this decision, Dr. Mastroianni recommended in February 2007 that the claimant be provided with a home health aide. He has also opined that the claimant’s continued left leg problems are directly related to her low back problems. On April 4, 2006 the claimant was examined by James B. Butler, M.D. Dr. Butler said the claimant articulated a concern about Parkinson’s disease. Dr. Butler, however, opined that the claimant’s gait instability was more likely due to arthritis in the hips and problems in the back than a neurological disorder such as Parkinsonism. Respondents’ Exhibit 5.
Dr. Jarob Mushaweh conducted a commissioner’s examination of the claimant on February 3, 2009. Dr. Mushaweh concluded after that examination “that the patient is not capable of returning to work in any capacity.”
Based on the evidence presented at the hearing the trial commissioner determined that as of February 3, 2009 forward the claimant was totally disabled pursuant to § 31-307 C.G.S. He determined that the testimony of the claimant and the testimony of Dr. Mushaweh were fully credible and persuasive. The trial commissioner relied on the opinion of Dr. Mushaweh that the claimant was totally disabled.
The respondents filed a Motion to Correct which sought to remove the award of § 31-307 benefits and removing references to Dr. Mushaweh’s testimony. The Motion was denied in its entirety and the respondents have pursued this appeal. Their appeal is based on their view that the trial commissioner erred in finding the claimant totally disabled.
The central point raised by the respondents in their appeal is a challenge to the trial commissioner’s reliance on the opinions of Dr. Mushaweh. The respondents believe that this witness’s opinion as to total disability must be discounted as he considered the claimant’s age in rendering his opinion. This, in the eyes of the respondents, constitutes testimony on vocational and not medical issues.1 We have reviewed Dr. Mushaweh’s report and are not persuaded by the respondents’ argument.
Dr. Mushaweh’s report noted that the claimant related a number of aggravating factors regarding her low back pain specifically, “sitting in a comfortable chair, sleeping, prolonged positions and carrying items.” A review of the claimant’s medical records showed that the claimant had “significant degenerative changes and thinning of the L3-4 disc space. She has postoperative changes at L4-5, both on the right and left side. There are elements of central, as well as lateral stenosis at the L3-4 segment.” The examination found the claimant had some difficulty in toe walking, her back dynamics were moderately limited, and her left ankle jerk was “distinctly limited and easily fatigued.”
Based on these objective results the commissioner’s examiner concluded “[a]t the age of 69 and with the multiple level degenerative disc disease, more advanced at the L3-4 segment, it is prudent to conclude the patient is not capable of returning to work in any capacity.” The trial commissioner found Dr. Mushaweh persuasive and credible and relied on his opinion to find the claimant totally disabled. We must respect this reliance on the commissioner’s examiner.
While Dr. Mushaweh’s report may not have been as detailed as the respondents would have liked, we find that it offered supportive reasoning for the ultimate conclusion it reached. It is clear that the examiner placed great weight on the claimant’s deteriorating disc condition as impairing her employability. While the examiner did cite the claimant’s age, we cannot ascertain how this is improper in a professional evaluation as to whether the claimant was likely to reach a sufficient recovery to rejoin the work force. A physician cannot be expected to avert his or her eyes to the obvious. Moreover, to the extent the respondents did not agree with Dr. Mushaweh’s opinion or found it inadequate, they had the opportunity to depose the witness and challenge the basis for his conclusions. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). “Having forsaken their opportunity to challenge this evidence, as a result the respondents must accept the testimony “as is,” as well as the permissible inferences which the trial commissioner drew from it.” Id., n3.
We are generally deferential to a trial commissioner who relies on the opinion of a commissioner’s examination. As we pointed out in Carroll v. Flattery’s Landscaping, Inc., 5385 CRB-8-08-10 (September 24, 2009), we would generally expect a trial commissioner to explain why he or she chose not to rely on the opinion of the commissioner’s examination.
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).
Therefore, we are satisfied that the trial commissioner had a sufficient quantum of facts on the record to reach his conclusion herein. Nonetheless, we do believe that it is important to restate the standards that should be applied when a claimant asserts he lacks a work capacity and seeks § 31-307 C.G.S. benefits. In Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009) we cited Franklin v. State/Department of Mental Health & Addiction Services, 5224 CRB-8-07-4 (April 11, 2008) as delineating the standard to be applied in deciding such cases.
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). Id.
In the present case, the trial commissioner found the evidence presented in the commissioner’s examination was sufficient to meet the claimant’s burden herein. In other recent cases we have found other factors may be persuasive in establishing total disability. In Ciaglia v. ITW Anchor Stampings, 5440 CRB-5-09-3 (March 2, 2010) the trial commissioner found vocational experts persuasive in their opinion the claimant was unemployable. We also found, citing Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007), that “a claimant’s demeanor evidence may be relevant in the commissioner’s decision.” Id.
We also have recently reiterated that a trial commissioner may decide medical evidence is sufficiently compelling to warrant a finding of total disability. In Camp v. State/Capital Community Technical College, 5401 CRB-1-08-11 (November 17, 2009) we concluded the medical evidence on its own supported the finding the claimant was totally disabled. We also pointed out that when a claimant attempts to perform a job, but finds he or she cannot maintain “‘tenets of employability’ regarding consistent work performance” that this can constitute probative evidence that they lack a work capacity, citing Latham v. Caraustar Industries, 5241 CRB-2-07-6 (June 25, 2008) and Howard v. CVS Pharmacy, Inc., 5063 CRB-2-06-3 (April 4, 2007).
This panel, on the other hand, has upheld a denial of a § 31-307 C.G.S. claim when the claimant asserted he was “unemployable”; but was found not to be credible. Clarizio v. Brennan Construction Company, 5281 CRB-5-07-10 (September 24, 2008). The medical testimony credited by the trial commissioner in Clarizio determined the claimant had a work capacity. In the present case, the medical evidence credited by the trial commissioner found the claimant lacked a work capacity.
The sum total of our recent decisions applying the Osterlund2 precedent has been that our trial commissioners may consider the “totality of the factors” in ascertaining whether at the time of the formal hearing the claimant has proven he is entitled to temporary total disability benefits.3 It is apparent that various members of the bar would desire a “bright line” rule demarcating whether a claimant was entitled to this relief. This is unsupported by the over 60 years of precedent applying Osterlund. There is no hard and fast rule requiring the presentation of vocational testimony in a claim for § 31-307 C.G.S. benefits and we decline to impose such a rule by adjudicatory fiat.
We believe we are still bound to apply the legal standard promulgated by Chief Justice Maltbie in Osterlund v. State, 135 Conn. 498 (1949). He determined that as a matter of law total incapacity does not mean only that the claimant cannot perform his prior occupation, or conversely does not mean a complete inability of the claimant to perform any labor whatsoever. The finding required for such an award is “not the employee’s inability to work at his customary calling but the destruction of his capacity to earn in that or any other occupation which he may reasonably pursue.” Id., 505. “A finding that the employee is able to work at some gainful occupation is not in all cases conclusive that he is not totally incapacitated. If though he can do some work, 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., 506-507.
In the present matter the commissioner’s examiner concluded that the claimant’s deteriorating lumbar spine rendered her incapable of engaging in an occupation she might reasonably pursue. Our review of the medical evidence leads us to conclude this opinion was not unreasonable, and it was not an abuse of discretion for the trial commissioner to rely on this opinion. In re Shaquanna M., 61 Conn. App. 592, 603 (2001).4
We find no legal error, and affirm the Finding and Decision. The appeal is dismissed.
Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.
1 The respondents cite Bazelais v. Honey Hill Care Center, 5011 CRB-7-05-10 (October 25, 2006) for the proposition that Dr. Mushaweh’s testimony was flawed, although they admit the cases are factually distinguishable. Respondents’ Brief p. 5. We find another material difference. In Bazelais, the trial commissioner relied on two different doctors when “the opinion of the two doctors differ materially, yet the finding in question treated them as interchangeable.” For that reason we remanded the matter for an articulation. In this case, the trial commissioner relied on a single medical witness whose conclusions were not ambiguous. Reliance on Bazelais, in this case, is therefore unwarranted. BACK TO TEXT
2 Osterlund v. State, 135 Conn. 498 (1949). BACK TO TEXT
3 At a Connecticut Bar Association seminar on March 12, 2010 one panelist suggested that the Osterlund case stood for claimants who were “permanently totally disabled.” We wish to correct this misconception. The claimant has the continuing burden under Chapter 568 of establishing he or she is disabled. See Papa v. Jeffrey Norton Publishers, Inc., 4486 CRB-3-02-1 (February 25, 2003), and Bailey v. Stripling Auto Sales, Inc., d/b/a Willimantic Dodge/Nissan, 4516 CRB-2-02-4 (May 8, 2003). The respondent retains the right to seek to terminate benefits by filing a Form 36 asserting the claimant has a work capacity. Smith v. Federal Express Corporation, 5405 CRB-7-08-12 (December 1, 2009). BACK TO TEXT
4 We uphold the trial commissioner’s denial of the respondents’ Motion to Correct. This motion sought to interpose the respondents’ conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (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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