Johnston v. AAR Circamet

The claimant was represented by William C. Berry, Esq., Sack, Spector & Barrett, 836 Farmington Ave., West Hartford, CT 06119-1544.

The respondents were represented by Debra Dee, Esq., Law Offices of Nancy Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

This Petition for Review from the June 14, 1996 Finding and Award of the Commissioner acting for the First District was heard March 14, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 14, 1996 Finding and Award of the Commissioner acting for the First District. He argues on appeal that the trier erred by denying his claim for temporary total disability or temporary partial disability benefits between the time he was laid off and the time of his second arthroscopy over a year later. We affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to his left knee on April 17, 1992. He returned to work after three days’ absence, but complained of leg pain, and went to the hospital at his employer’s suggestion. He was referred to Dr. Stevens, an orthopedic surgeon, who sent him for an MRI that showed a partial tear of the left medial meniscus. Dr. Stevens performed arthroscopic surgery on the knee on June 11, 1992. The claimant continued to complain of pain and reported that his knee was still giving out, even after undergoing a physical therapy course prescribed by Dr. Stevens. Despite the claimant’s complaints, Dr. Stevens said that the knee was fine and returned him to work on August 10, 1992, prescribing the use of a special knee support.

The claimant testified that he had continued problems with his knee and kept falling down at work. On or about September 7, 1992, the claimant was laid off along with a number of other employees. He collected unemployment benefits, and looked for work. He continued to treat with Dr. Stevens throughout the fall and winter, still complaining that his knee was failing him. Dr. Stevens referred the claimant to another orthopedist, Dr. Burnstein, for a second opinion. He diagnosed patellofemoral instability after examining the claimant on February 23, 1993. The claimant kept following up with Dr. Stevens, who felt he reached maximum medical improvement and discharged him from care in April, 1993.

The claimant returned to Dr. Burnstein in November, reporting that he had been unable to work due to ongoing knee problems. The doctor noted tenderness and swelling as of November 9, 1993, and administered a cortisone shot. In mid-December, he performed another arthroscopy and discovered a significant tear of the medial meniscus, which he removed. He also debrided the claimant’s left kneecap (patella). The claimant then improved with physical therapy, and was released to full duty on March 21, 1994.

Dr. Stevens testified that the claimant must have developed a second tear between the time he performed his arthroscopy and the time Dr. Burnstein performed surgery. He opined that weakness in the knee would have caused it to buckle, resulting in a reinjury. Dr. Fisher, an orthopedist who was called in for an independent medical examination by the respondent insurer, had examined the claimant on April 15, 1993, and could not explain the claimant’s complaints of instability. Dr. Burnstein said that the claimant would not have been released to return to work in August 1992 if it was known he had additional damage involving the medial meniscus. Dr. Stevens agreed that he could not have tolerated regular duty if the damage had in fact been there in August 1992.

The trial commissioner found that the claimant was temporarily totally disabled from the date of his first arthroscopy until August 10, 1992, when he was released for work by Dr. Stevens, and that he was entitled to temporary total disability from the time of his second arthroscopy until March 8, 1994, when he was again released for regular duty. He denied the claim for benefits between the date the claimant was laid off and the time of his second surgery on the ground that the claimant had not met his burden of proof as to that period of time. It is that denial that the claimant has appealed here, along with the denial of a Motion to Correct that would have added a finding of a work restriction by Dr. Stevens for the disputed 15-month period, and would have added a conclusion that temporary partial disability benefits were justified for that timespan.

The claimant argues that Dr. Stevens had changed his opinion regarding the claimant’s work capacity during the period of time he was laid off, and that the work restriction he subsequently described is an undisputed fact that should have been added to the findings. The claimant stresses that Dr. Stevens did not know exactly what the claimant’s job entailed when he released him for regular duty in August 1992, and that the restrictions Dr. Stevens mentioned in his 1996 deposition would have in fact applied to the claimant at that time based on his actual job duties. He also argues that it was unreasonable to infer from the facts that the claimant was not entitled to benefits for the 15-month period following his layoff.

We have stated many, many times that in reviewing a trier’s decision, this board must remain cognizant of the fact that the trial commissioner is the individual entitled to find the facts and to determine the weight and credibility of the evidence presented to him by the parties. Rogers v. Laidlaw Transit, 45 Conn. App. 204, 207 (1997). The commissioner’s findings can be changed only if they contain facts found without evidence or fail to include material facts which are admitted and undisputed. Id.; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). His conclusions must stand unless they result from an incorrect application of the law to the facts found, or from an illegally drawn inference from the subordinate facts. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The rule in workers’ compensation proceedings is that the trier is entitled to weigh the credibility of all medical opinions, even those that are seemingly uncontradicted, in reaching a decision. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). This includes the discretion to credit part of a medical opinion while ignoring another part. Nasinka v. Ansonia Copper and Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335-36, 1592 CRB-5-92-12 (April 27, 1995). Once the commissioner makes a finding regarding the credibility of evidence, this board may not reevaluate that decision absent a clear abuse of discretion. Id., citing Fair, supra, and Webb, supra, 70-71.

Here, the trial commissioner made a specific finding regarding Dr. Stevens’ testimony that the claimant must have developed a second tear sometime between his two arthroscopic surgeries. This is directly supported by page 13 of Dr. Stevens’ deposition. Although Dr. Stevens felt that it was reasonably probable that the claimant’s second meniscal tear was related to his first one, Id., 17, he was of the opinion that the second tear most likely happened between April and November 1993 during one of the claimant’s many knee buckling episodes. He stated this because he had examined the claimant prior to April 1993 several times, as did Dr. Burnstein, and neither doctor found anything unusual. Id., 18.

The trial commissioner was entitled to credit this opinion, and to infer from it that the claimant had not proven that he was disabled and thus entitled to total disability benefits between the date he was laid off and the date of his second arthroscopic surgery. The fact that the claimant was collecting unemployment, thereby indicating that he was capable of performing a job, also supports that conclusion. We cannot say that the trier abused his discretion here, as he relied on testimony in the record in making his decision. Therefore, we must affirm his denial of benefits for the 15-month time period at issue.