Summary
In Iannotti, supra, this board recognized that the parties usually expect a § 31-294f medical examination to provide the trier with strong guidance.
Summary of this case from Gillis v. Waterbury ConstructionOpinion
CASE NO. 1829 CRB-3-93-9
APRIL 25, 1995
The claimant was represented by Robert F. Carter, Esq., Carter Civitello.
The respondents were represented by Scott W. Williams, Esq., Maher Williams.
This Petition for Review from the August 26, 1993 Finding and Award of the Commissioner acting for the Third District was heard August 26, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.
OPINION
The respondents have petitioned for review from the August 26, 1993 Finding and Award of the Commissioner for the Third District. They argue on appeal that the commissioner improperly failed to grant allegedly undisputed findings in their Motion to Correct, and that the commissioner's finding of permanent partial disability is not supported by the evidence. We affirm the trial commissioner's decision.
The commissioner found that the claimant suffered compensable industrial bronchitis on March 1, 1990, as evidenced by a voluntary agreement approved on December 28, 1991. He noted that the claimant's treating physician, Dr. Beckett, concluded that as of February 1991 the claimant had a fifteen percent permanent partial disability of both lungs as a result of workplace exposure. Another physician, Dr. Gee, agreed that the lung injury was work-related, but opined that the claimant had no respiratory limitation as of November 25, 1992. A third physician, Dr. Godar, agreed with Dr. Beckett's rating, but opined that the claimant's respiratory restrictions were due to obesity rather than workplace exposure.
Without discussing the medical reports any further, the commissioner concluded that the claimant had a fifteen percent permanent partial disability of both lungs resulting from the condition accepted in the voluntary agreement. The respondents filed a Motion to Correct, seeking to add a finding that Dr. Gee was a § 31-305 C.G.S. commissioner's examiner. The commissioner denied the Motion to Correct. The respondents have now appealed to this Board.
The respondents argue that the subordinate facts do not support the commissioner's conclusion that the claimant has a 15 percent permanent partial disability of both lungs as a result of the compensable injury. The February 1991 reports of Dr. Beckett and Dr. Godar were in conflict as to the cause of the claimant's lung impairment. The commissioner apparently ordered a commissioner's examination pursuant to § 31-305. Dr. Gee reported on November 25, 1992 that he had reviewed the records of Drs. Godar and Beckett, and concluded that the claimant's disability was as suggested by Dr. Beckett until July 2, 1992, when pulmonary function tests were performed on the claimant. After that date, Dr. Gee believed that the claimant had no respiratory disability based on the tests, although the claimant did report "some cough and occasional wheeze." Dr. Gee concluded that "there is some restriction on job features for the latter reason but with an appropriate job setting, I presently believe he has now no limitations."
Section 31-305 C.G.S. provided that an employer or commissioner could require an employee to "submit himself to an examination by a reputable practicing physician or surgeon, with a view to a determination of the nature of the injury and the incapacity resultant therefrom. Such physician or surgeon shall be selected by the employer from an approved list of physicians and surgeons prepared by the commissioners and shall be paid by the employer. . . ." This section was repealed in 1991 and recodified in § 31-294f.
Although the commissioner cited Dr. Gee's report in the Finding and Award, he did not adopt its conclusion that the claimant had no permanent partial disability. The respondents contend that by ignoring Dr. Gee's report, the commissioner "strayed from the accepted procedure used to settle disputes of this sort." They argue that his decision must be overruled to preserve the function of a commissioner's exam.
It is the trial commissioner's function to assess the weight and credibility of medical reports and testimony. Colello v. Dresser Industries, 1691 CRB-4-93-4 (decided Nov. 3, 1994). The commissioner must determine as a factual matter the causal relationship between a claimant's symptoms and a compensable injury. Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers' Comp. Rev. Op. 234, 235, 1000 CRD-5-90-4 (Oct. 30, 1991). Once the commissioner makes a factual finding, this Board is bound by that finding if there is evidence in the record to support it.Fair v. People's Savings Bank, 207 Conn. 535, 538-41 (1988). Similarly, the conclusions drawn by the commissioner from the facts found must stand "unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them." Id., 539.
In this case, Dr. Beckett's report supports the commissioner's decision regarding permanent partial disability. Furthermore, Dr. Gee's report also mentioned that the claimant still suffered from wheezing and coughing, and did not discredit Dr. Beckett's original conclusion. We are unwilling to encroach upon the commissioner's authority to determine the credibility of medical evidence regardless of the fact that one particular examination was performed pursuant to § 31-305. Thus, the commissioner's decision must stand.
We note, however, that when a commissioner orders a medical examination, there is usually an expectation among the parties that said examination will provide strong guidance to the commissioner. Where a commissioner chooses not to adopt the diagnosis of the physician performing that examination, he or she should articulate the reasons behind his or her decision to disregard the examiner's report. Although we do not find error in the commissioner's failure to explain his credibility determination in this particular case, we want to stress the importance of a commissioner-ordered medical examination and the need for a commissioner to explain his or her reasoning in not crediting the examiner's report.
The respondents also claim error in the commissioner's failure to grant the Motion to Correct. Based on our above discussion, it is clear that the omission of the phrase "§ 31-305 commissioner's examiner" in the findings had no impact on the commissioner's decision. Consequently, it was not improper for the commissioner to deny the Motion to Correct. See Plitnick v. Knoll pharmaceuticals, 1699 CRB-8-93-4 (decided Nov. 7, 1994).
The trial commissioner's decision is affirmed.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.