City of Bridgeport Benefits Dept

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Workers' Compensation CommissionJun 8, 1998
3595 CRB 4 (Conn. Work Comp. 1998)

CASE NO. 03595 CRB-04-97-04CLAIM NO. 400018595

JUNE 8, 1998

The claimant was represented by Robert C. Pinciaro, Esq., Mihaly Kascak.

The respondents were represented by Michael J. McAuliffe, Esq., Pomeranz, Drayton Stabnick.

This Petition for Review from the April 21, 1997 Finding Re: Form 36 of the Commissioner acting for the Fourth District was heard January 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles



The claimant has petitioned for review from the April 21, 1997 Finding Re: Form 36 of the Commissioner acting for the Fourth District. He argues on appeal that the trier erred by not finding him to be temporarily totally disabled. We affirm the trial commissioner's decision.

The following facts are relevant to this appeal. The trial commissioner took judicial notice that the claimant suffered a January 12, 1989 back injury that, by virtue of an approved voluntary agreement, left the claimant with a 28% permanent partial disability of the low back and a May 1, 1991 maximum medical improvement date. The commissioner found that the claimant continued to suffer radiating pain down his leg, and was unsuccessful in attempting to complete an industrial rehabilitation program. He has not returned to work since his 1989 injury. The claimant's treating physician, Dr. Schlein, rated him with a 30-35% permanent partial impairment, and encouraged the claimant to continue a home exercise program that he had prescribed. The opinions of three other doctors were noted as well: one found the claimant to be "profoundly debilitated and incapable of further improvement;" one diagnosed a 30% permanent spinal impairment, with a zero prognosis for returning to gainful employment, and one thought that the claimant should be able to work, but due to his six years of inactivity, it would be "absolutely impossible" to get him back. Finding, ¶¶ 9A-C.

The trial commissioner concluded that the claimant had reached maximum medical improvement, and that permanent partial disability benefits should commence with the June 11, 1996 date of the initial approval of the Form 36. She found that the claimant had "failed to prove by a preponderance of evidence that he is totally disabled from any kind of work, but has simply stated that he has not returned to work since the accident." Thus, the trier dismissed the claim for temporary total disability benefits. The claimant has filed a petition for review from that decision.

Whenever a claimant asserts that he is totally incapacitated, the burden of proving such a disability falls upon him. Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 42 (1996); Curtiss v. State of Connecticut/Dept. of Mental Retardation Region 2, 3220 CRB-6-95-11 (decided Aug. 20, 1997). Although the claimant in this case correctly observes that a person may reach maximum medical improvement, have a permanent partial impairment, and be temporarily totally disabled all at the same time; McCurdy v. State, 227 Conn. 261, 267-68 (1993); it was still necessary for the claimant to persuade the trial commissioner that at least some of the evidence presented in support of his claim of continued total disability was credible and convincing. Curtiss, supra. As always, the trial commissioner acted as the finder of the facts and the judge of the credibility of the evidence before her, and the mere fact that some of the medical reports appeared uncontradicted did not make the opinions contained within them admitted or undisputed. Kish v. Nursing Home Care, Inc., 47 Conn. App. 620, 627 (1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers' Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Absent a clear abuse of discretion, this board cannot disturb a decision made by the commissioner regarding the appropriate weight to give the evidence. Jusiewicz, supra.

The gist of the claimant's argument on appeal is that the commissioner committed legal error by stating that the claimant has failed to prove total disability. His rationale is that most of the medical evidence indicates that the claimant cannot work, and none of it says that he can perform a job. Quite simply, this board has no authority on review to say that the claimant's evidence was credible, and proved his case as a matter of law. If a commissioner does not find a medical report, or a group of medical reports, convincing, there is nothing this board can do about it on appeal. Cummings, supra, 38; Webb, supra.

We observe that the claimant offered only medical reports in support of his case; neither he nor anyone else testified in support of his claim. Thus, the trial commissioner was unable to ask any questions, or witness the demeanor of the claimant as he told his story and described his current condition. Furthermore, a review of the medical reports reveals that only two of the six physicians whose reports were submitted into evidence state unequivocally that the claimant is totally disabled. Of those two, Dr. Sella only saw the claimant once for an independent medical examination on January 13, 1995, while Dr. Glass saw the claimant for one examination on August 23, 1993. Dr. Saberski, meanwhile, reported on October 4, 1995 that patients suffering from lumbar spine dysfunction generally have a work capacity, although the claimant may not be able to work due to the length of his disability. No firm opinion was offered either way. Dr. Schlein also left the issue of work capacity unaddressed. We can certainly see how the evidence offered by the claimant here could be insufficient in the commissioner's eyes to constitute adequate proof of the claimant's continuing total disability. Thus, we cannot say that the commissioner's failure to interpret the evidence in a manner more favorable to the claimant amounted to an abuse of her discretion.

The trial commissioner's decision is hereby affirmed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

Lorraine Lockery Administrative Hearings Lead Specialist