Fusciello v. Ronnie Demeo, Inc.

The claimant was represented by Paul S. Ranando, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., 700 West Johnson Avenue, Cheshire, CT 06410.

The respondent employer and Travelers were represented by Matthias J. DeAngelo, Esq., Law Offices of Scott B. Clendaniel, One Civic Center Plaza, P.O. Box 2138, Hartford, CT 06145-2138.

The respondent employer and Orion Group waived oral argument and relied on their brief and oral argument of the co-respondent Travelers. Notice sent to Brian E. Prindle, Esq., 72 Bissell Street, Manchester, CT 06040.

This Petition for Review from the December 29, 2000 Finding and Dismissal of the Commissioner acting for the Sixth District was heard August 24, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the December 29, 2000 Finding and Dismissal of the Commissioner acting for the Sixth District. He asserts on appeal that the trier erred by dismissing his claims for temporary total disability and § 31-308a discretionary benefits. We affirm the trial commissioner’s decision.

The claimant suffered compensable injuries to his right master arm and to his neck on September 20, 1983 and November 9, 1983. Liability for these injuries and resultant disability benefits has been apportioned equally between the insurers Orion and Travelers. The claimant received total disability compensation through November 13, 1987 as per our decision in Fusciello v. Ronnie Demeo, Inc., 12 Conn. Workers’ Comp. Rev. Op. 283, 1535 CRB-6-92-10 (June 7, 1994) [hereinafter Fusciello I]. There, we held that the trial commissioner’s initial award of total disability benefits beyond that date was unsupported by medical evidence, and reversed that portion of the award. Further hearings were then held on the issue of continuing total disability, and another decision was released on August 14, 1996.

In that ruling, the trier observed that the claimant was born in Italy in 1937, where he had only seven years of formal education. In 1964, he moved to the United States, and thereafter secured jobs that required demanding physical labor, such as masonry work and steelwork. He was able to speak English when he testified at the hearings below, and was about 60% fluent in written English. Dr. D’Angelo opined that his symptoms of arm, shoulder and neck pain had not changed much since he began treating in 1987, and he thought the claimant physically capable of performing non-physically demanding jobs. Dr. Robinson also thought that the claimant was capable of light duty work, and that he had reached maximum medical improvement. The claimant admitted that he had not looked for employment since 1983, as there was no occupation that he believed he could reasonably pursue. The trier concluded that the claimant had failed to establish a total disability claim through the last formal hearing, as he had sufficient understanding of English to avail himself of his sedentary work capacity. He also awarded the claimant 5% permanency on his right arm and 15% on his cervical spine. The claimant appealed the trier’s ruling that he had a light duty capacity, which this board affirmed. Fusciello, 3406 CRB-8-96-8 (Feb. 4, 1998) [hereinafter Fusciello II].

The claimant then initiated another total disability claim for benefits postdating the August 5, 1996 formal hearing. The trier found that, according to the claimant’s testimony, he has not worked since 1996 as he is unable to function either at home or at the workplace. The claimant describes his right side as being numb every morning when he awakens, and reports that he feels pain in his arm on a daily basis. These difficulties are the same ones that he experienced in 1995. Dr. Karnasiewicz examined the claimant once in 1997, and testified that he had a nerve root compression caused by spurs at C5-C6 and C6-C7 that originated from his work-related neck injury. These spurs had caused radiculopathy, and prevented the claimant from being able to comfortably look forward, bend or lift. As such, his work activity would be limited to a few hours per day. The doctor also testified that the claimant’s condition was essentially the same as it was when he was seen by Dr. Robinson and Dr. Ferraro in 1995, whose opinions concurred with his, and who testified at earlier formal hearings. He thought that, based on the claimant’s background and language limitations, he should be deemed “functionally disabled.”

Albert Sabella, a rehabilitation counselor, evaluated the claimant for job fitness on September 8, 1997. He testified by deposition that based upon the claimant’s age, lack of transferable skills, limited academic ability, physical restrictions and the length of time that he has been out of work, he was substantially handicapped in the marketplace and thus unemployable. He also acknowledged that the claimant’s set of skills and limiting factors were the same in 1995 as they were in 1997. Dr. Cohen, another rehabilitation counselor, also thought the claimant incapable of returning to his former employment as a steelworker or mason due to his medical restrictions. He did think the claimant capable of a service position that was part-time and sedentary in nature; however, current employment opportunities did not include such a position. He noted that the claimant’s status had worsened since 1995, insofar as he had since suffered a heart attack and diabetes, and had begun taking medication that produced detrimental side effects.

The trial commissioner found the testimony of Dr. Karnasiewicz to be the most persuasive with regard to the claimant’s light duty capacity, and to the fact that the claimant’s condition had not substantially changed since 1995. He also found Dr. Cohen to be more credible than Dr. Sabella, especially with regard to his opinion that any negative change in the claimant’s employability was due to his recent heart attack and symptoms of diabetes. Based upon these findings, the trier concluded that the claimant had failed to sustain his burden of proving a significant change of circumstances since the 1995 formal hearings that resulted in a dismissal of his total disability claim. He concluded that the claimant had failed to sustain his burden of proof of entitlement to either § 31-308a benefits or total disability benefits. The claimant has appealed that decision to this board.

Section 31-307 entitles any claimant whose compensable injury results in total incapacity to collect weekly compensation. The burden of proving that such a disability exists falls upon the claimant, who must introduce sufficient evidence to establish his claim. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 454 (2001); D’Amico v. State/Dept. of Correction, 4287 CRB-5-00-9 (Aug. 3, 2001). However, it is the trial commissioner who acts as the factfinder and who evaluates the credibility of all witnesses, both lay and expert, whether or not their testimony appears to be expressly contradicted. Id.; Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000). Whether or not a claimant is totally disabled amounts to a question of fact that will ultimately rest on the trier’s judgment. Fusciello II, supra; Brown v. State/Dept. of Mental Health and Addiction, 4053 CRB-2-99-5 (July 27, 2000), aff’d, 66 Conn. App. 882 (2001).

In a 1996 award, the trier of fact determined that the claimant’s lingering limitations that stemmed from his 1983 compensable injuries did not render him totally disabled beyond November 13, 1987. That award was upheld in Fusciello II. As with any legal decision properly rendered by a competent court or administrative agency, the factual findings made by the commissioner constitute a binding decision on those issues that may not be relitigated under the principle of res judicata. Owen v. Diversified Hospitality Group, Inc., 4204 CRB-3-00-3 (July 25, 2001), citing Dowling v. Finley Associates, Inc., 248 Conn. 364, 373-74 (1999). It follows that, without any change in the claimant’s circumstances (or in the controlling law), he would not be able to prove entitlement to total disability benefits for the time period immediately postdating the last formal hearing prior to the 1996 decision. Similarly, where a claimant has been found totally disabled, the employer may not cease paying benefits until it files a Form 36 as per § 31-296 C.G.S. along with corroborative medical evidence showing that the claimant again has an earning capacity. See Calderoni v. B&T Contractors, 4207 CRB-5-00-3 (May 4, 2001) (claimant who had been found not to be totally disabled from 1991-97 needed to show change in medical condition with regard to his injuries in order to demonstrate total disability afterward); D’Amico, supra (claimant was found to have work capacity in 1999 based on doctors’ reports; future total disability claim depended on noteworthy change in claimant’s condition, of which claimant failed to persuade trier).

The claimant maintains on appeal that the trier erred by concluding that the testimony of Drs. Karnasiewicz and Cohen did not establish that the claimant’s medical condition had worsened to the point where he could no longer work. With regard to the claimant’s employability, the trier relied significantly on the testimony of Dr. Cohen. See Claimant’s Exhibit E (April 5, 2000 Deposition). The claimant asserts that the trier misinterpreted that testimony, however, insofar as Finding #46 states, “On cross examination, Dr. Cohen further testified that to the extent the claimant’s employability has changed since 1995, it is because the claimant had suffered a heart attack, diabetes and the effects of the several medications he presently takes that he was not taking in 1995.” See also, Findings, ¶ N. He contends that, despite the discussion of the claimant’s heart and diabetes medication, Dr. Cohen admitted that he had no medical information that would indicate such medications interfered with the claimant’s ability to work. Claimant’s Brief, p. 11.

As we review Dr. Cohen’s testimony, we remind the claimant that the trier of fact may accept none, all, or part of a doctor’s opinion. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Goldberg, supra. During his direct testimony, Dr. Cohen stated that in a “best case scenario,” the claimant would be capable of performing certain sedentary entry-level duties such as security guard work and ticket-taking, preferably part-time due to his need to recline during the day. Exhibit E, supra, pp. 23-24. He thought that the claimant had no practical work capacity, though, because there would be few employers who would be willing to accommodate the claimant’s needs; Id., 26; and retraining would be difficult due to the claimant’s 17-year absence from the work force. Id., 27. On cross-examination, he testified that, if the claimant were still the same age (57) as he was in 1995, his opinion would be the same. Id., 31. He said that there had been no change in the claimant’s medical status as far as his neck injuries were concerned that was significant to his assessment. Id. The history that the claimant provided of having a recent heart attack and needing six different diabetes and heart medications, on the other hand, led him to believe the claimant’s work capacity was even more restricted now than it was in 1995. Id., pp. 31, 41-42.

This testimony is sufficient to support ¶ 46 of the trier’s Finding and Dismissal, along with ¶ N of his conclusions. The trier was entitled to rely on those portions of Dr. Cohen’s testimony that concerned the claimant’s sedentary work capacity and the changes in his condition since 1995, without concurrently finding that the claimant’s age, education, training and the nature and extent of his work-related injury either left him totally disabled, or entitled him to benefits under § 31-308a. Dr. Cohen did not state that the claimant was completely disabled as a direct consequence of his 1983 injuries. Instead, other factors left the claimant unable to avail himself of his theoretical sedentary work capacity.

With regard to the claimant’s medical status, Dr. Karnasiewicz testified that he would not recommend surgery to repair the claimant’s calcified disks, due to the risks involved and the probable nerve changes over the years that would contraindicate any pain relief from surgery. Claimant’s Exhibit C, p. 16 (October 28, 1999 Deposition). However, he thought physical therapy and/or epidural injections could help the claimant with pain relief. He characterized the claimant’s radiculopathy as probably, but not definitely, being a progressive condition that often reaches “a steady state and just kind of stay[s] there” in terms of disease progress. Id., 17. He could not say with any confidence whether the claimant had reached that point; the spurs seemed to be larger in 1997 than they had been in 1984, but he was unsure. Id. However, Dr. Karnasiewicz thought the claimant’s overall physical condition was “pretty much the same” during the claimant’s visits with Drs. Robinson and Ferraro in 1995 as it was when he saw the claimant in 1997. Id., 26. He agreed with those doctors that, from a physical point of view, the claimant was capable of light selected work, but non-physical factors such as language, age and education made him unemployable in Dr. Karnasiewicz’s opinion. Id., 26-28.

The trial commissioner was not remiss in relying on many of these statements, while placing less weight on Dr. Karnasiewicz’s opinion of the claimant’s overall employability insofar as he took non-physical factors into account. From that testimony, one could reasonably conclude that the claimant’s condition, though generally worse since 1983, was about the same in 1995 as it was two or three years later. Between his testimony and that of Dr. Cohen, we find that there is sufficient evidence in the record to support the factual findings that the claimant has challenged on appeal and in his Motion to Correct, along with the legal conclusions that the trier based upon those findings. Accordingly, this board may not disturb the trier’s Finding and Dismissal on appeal. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).