Opinion
CASE NO. 4693 CRB-6-03-7CLAIM NO. 601019458
JUNE 23, 2004
The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, 96 Webster Street, Hartford, CT 06114.
The respondents were represented by Dominick Statile, Esq., Montstream May, P.O. Box 1087, 655 Winding Brook Drive, Glastonbury, CT 06033.
This Petition for Review from the June 24, 2003 Finding and Dismissal of the Commissioner acting for the Sixth District was heard January 23, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White and Charles F. Senich.
OPINION
The claimant, Rada Bidoae, has appealed from the June 24, 2003 Finding and Dismissal of the Commissioner acting for the Sixth District. We affirm the decision of the trial commissioner.
The pertinent facts are as follows. The claimant was employed as a housekeeper with the respondent, Hartford Golf Club since 1991. On May 30, 1999 the claimant injured her back while in the course of her employment. After her initial treatment with Connecticut Multi Specialty Group she was diagnosed with an acute low back strain with lumbar spondylosis. The claimant was temporarily totally disabled from June 1, 1999 through June 9, 1999. Thereafter, Ms. Bidoae was released to light duty capacity by St. Francis Care. On June 27, 1999 the claimant underwent an MRI of the lumbar sacral spine which revealed a small disc herniation at T12-L1 and L1-L2 and moderate spondylosis at L1-L2. The respondents noted Ms. Bidoae had a pre-existing back injury in 1997. She was also involved in a motor vehicle accident on February 21, 1998 and sustained injuries to her back and neck as a result. X-rays taken of the claimant's lumbar and cervical spine at that time revealed a narrow L5-S1 interspace and a narrow C5-C6 disc space and subluxation at C5.
At a formal hearing held on July 24, 2001 a trial commissioner ordered if the claimant did not submit to the respondent's vocational examination within a reasonable time period at the formal hearing she would be precluded from producing any evidence relevant to her own vocational expert's assessment. That trial commissioner's order was the subject of a prior appeal, Bidoae v. Hartford Golf Club, 4424 CRB-6-01-8 (June 27, 2002). In that appeal, the claimant primarily contended that a vocational rehabilitation specialist falls outside the scope of § 31-294f C.G.S. This statute allows the employer or commissioner to request the employee undergo an examination by a practicing physician or surgeon in order to determine the nature of the worker's injury and related incapacity. While we agreed with the claimant that § 31-294f was inapplicable to the determination of this issue we held "a trier is acting well within his authority if he rules that she [the claimant] cannot offer such evidence without giving her employer and its workers' compensation insurer an opportunity to offer relevant rebuttal evidence by scheduling their own vocational rehabilitation examination." Id. Therefore, we upheld the trial commissioner's determination that the claimant be precluded from offering her own vocational expert's evidence if she did not submit to the respondent's vocational expert's examination. To date the claimant has not submitted to such.
The claimant raises the same issue regarding the rehabilitation expert in this appeal as she did in her prior appeal. This issue was the subject of an earlier appeal and for that reason we will not address the issue a second time. Matey v. Dember, 3153 CRB-5-95-8 (January 10, 1997), aff'd in part and rev'd in part, 256 Conn. 456 (2001); Cuascut and VMMC v. Waldbaum's Foodmart, 16 Conn. Workers' Comp. Rev. Op. 3, 3111 CRB-8-96-6 (October 1, 1996). Therefore, the findings regarding the admissibility of the claimant's vocational expert's evidence shall stand.
On June 22, 1999 Dr. Albert Casale, an orthopedic surgeon, placed the claimant out of work. On July 6, 1999, upon the claimant's request, Dr. Casale placed the claimant out of work for two additional weeks but told the claimant she would need to return to work after that period passed. On July 20, 1999 Dr. Casale placed the claimant on a light duty sedentary work capacity.
On December 23, 1999 the claimant was seen by Dr. Jay Krompinger, an orthopedic surgeon, who opined that claimant had a sedentary work capacity. Dr. Krompinger diagnosed the claimant with central back pain secondary to a degeneration of an L5-S1 disc and treated her with physical therapy, epidural injections and a brace. On August 8, 2000 Dr. Krompinger assigned the claimant an eight percent permanent partial disability to her lumbar spine. The trial commissioner who heard the merits of the claim found the claimant had not sustained her burden of proof that she was permanently and totally disabled as a result of her May 30, 1999 work related injury. He therefore dismissed this claim.
The claimant has appealed this finding. The thrust of the claimant's remaining issues on appeal concern the commissioner's alleged error in failing to find the claimant was totally disabled pursuant to § 31-307 C.G.S. The claimant in her brief alleges the combination of the following factors would mandate a finding of total disability, citingOsterlund v. State, 135 Conn. 498 (1949). The claimant is a 54-year-old, 1991 Russian immigrant. She is not fluent in English. Ms. Bidoae has only worked in the United States as a housekeeper for the respondent-employer. She has been unsuccessful at obtaining a teacher's aid position. The claimant has not been able to pass a driver's license examination. Due to her language barrier, she has been unable to find other jobs. In May 2000 Dr. Krompinger opined that the claimant was only capable of sedentary work, but due to her educational background and functional capacity she may be a candidate for Social Security Disability. Jay Cudrin, PhD examined the claimant for the purpose of a Social Security Disability determination. Claimant's Exhibit A, July 15, 2002 report. Dr. Cudrin opined the claimant was afflicted with depressive disorder that may be secondary to her medical condition and that her I.Q. bordered on mental retardation. He stated she had severe problems with consistent attention and concentration.
The claimant raised several additional issues in her Brief which were not raised in her Reasons for Appeal. Specifically the claimant alleges the respondent benefited from an illegal and improper communication with the claimant's treating physician. Additionally, the claimant contends the trial commissioner erred in failing to award interest and attorney's fees under § 31-300 C.G.S. As these issues were not raised in a timely fashion, they are not discussed in this opinion. Furthermore, there was no testimony or evidence submitted regarding any alleged illegal communications at the formal hearing. Additionally, we note an award of interest under § 31-300 is assessed at the discretion of the trial commissioner. Delcarmine v. Fire Prevention Service, Inc., 5 Conn. Workers' Comp. Rev. Op. 123, 311 CRD-7-84 (June 27, 1988). As this opinion affirms the trial commissioner's decision to deny total disability benefits to the claimant, we would logically support a finding that does not include interest and attorney fees.
The claimant has the burden of proving she is eligible for § 31-307 benefits. Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 42 (1996);LaPierre v. UTC/Pratt Whitney, 4305 CRB-8-00-10 (October 23, 2001). The trial commissioner must decide whether a claimant has met that burden as a factual matter and possesses the sole authority to determine which of the medical, documentary or testimonial evidence is reliable or unreliable. Duddy v. Filene's (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). If there is evidence in the record to support the inferences drawn by the trier of fact, we cannot disturb those findings on review. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002).
In Osterlund, supra, 506-507, the court stated if an employee is able to perform some gainful employment, however "his physical condition due to his injury is such that 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." The claimant argues because of her physical incapacity combined with her lack of skills and failed attempts to find employment, she should be deemed totally disabled. We disagree. There was ample evidence to support the trier's finding that the claimant was not totally disabled.
An independent medical examination was performed by Dr. Peter R. Barnett. Dr. Barnett found the claimant was "capable of sedentary and ambulatory work avoiding any activities which place bending, lifting, twisting or prolonged unrelieved standing stresses on the lower back." Respondent's Exhibit 6. The claimant testified that she attended college for four years in her native country, Romania. April 2, 2003 Transcript, p. 33. The claimant testified that she worked as a Biology and Chemistry teacher in Romania. Id., pp. 21, 23. She testified that she attended Community Technical College in Hartford. Id., p. 23. Although the claimant vaguely testified that she applied for some positions and was unable to obtain those jobs, Id. p. 22, there was no comprehensive testimony nor other evidence submitted regarding the claimant's unsuccessful job search.
Dr. Cudrin stated the claimant was "conversationally competent in English." He opined the claimant's remarks to him "suggested that although she had physical limitations, she was able to handle many activities of daily living and routine repetitive tasks." Claimant's Exhibit A. Although Dr. Cudrin found the claimant's IQ test scored bordering mental retardation he stated, "there is no doubt that this score grossly underestimated her actual intelligence level. Her performance on this test was severely hampered by her problems with English and the fact that she lived in another country until about 10 years ago." Id.
Furthermore, Dr. Cudrin's examination was based on a determination for Social Security Disability benefits. Similarly, Dr. Krompinger opined the claimant may be a candidate for Social Security Disability. However, we have repeatedly held that decisions regarding Social Security Disability are not material to Workers' Compensation claims insofar as the standards used by the Social Security Administration differ from those used by the Workers' Compensation Commission. Bailey v. Stripling Auto Sales, Inc. d/b/a Willimantic Dodge/Nissan, 15 Conn. Workers' Comp. Rev. Op. 369, 3095 CRB-2-95-6 (June 28, 1996); Krajewski v. Atlantic Aerospace Textron, 15 Conn. Workers' Comp. Rev. Op. 44, 2120 CRB-6-94-8 (November 28, 1995). For these reasons we believe the trial commissioner had ample evidence to support his findings and we will not overturn those findings on review.
Therefore, we affirm the June 24, 2003 Finding and Dismissal of the Commissioner acting for the Sixth District.
Commissioners A. Thomas White and Charles F. Senich concur.