Opinion
CASE NO. 03460 CRB-03-96-11CLAIM NO. 0300001703
APRIL 8, 1998
The claimant was represented by Richard L. Jacobs, Esq., Jacobs, Jacobs Shannon.
The respondent was represented by Christopher Goulden, Esq., Mihaly Kascak.
This Petition for Review from the October 30, 1996 Finding and Award of the Commissioner acting for the Third District was heard May 9, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and Stephen B. Delaney.
OPINION
The respondents have petitioned for review from the October 30, 1996 Finding and Award of the trial commissioner acting for the Third District. In that decision the trial commissioner found that the claimant had sustained a compensable injury and awarded temporary total disability benefits pursuant to § 31-307. In support of their appeal, the respondents contend that the trial commissioner erred in finding that the claimant continued to be totally disabled despite a written report from the claimant's treating physician which indicated that the claimant had reached maximum medical improvement. We find no error.
The trial commissioner found the following relevant facts. The claimant sustained a compensable injury on February 13, 1989 when she fell and injured her back and neck. The injury aggravated preexisting conditions and caused her to suffer recurring migraine headaches. The claimant initially treated with Dr. Peck and Dr. Goodrich in Connecticut. In the spring of 1990 the claimant moved to Kansas. On March 22, 1991 the claimant went to a hospital emergency room because of cervical and lumbar pain, where she received an injection of a medication which caused the claimant to develop asthma. Due to continued cervical and back pain, the claimant sought treatment with Dr. Eyester, an orthopedic surgeon. Dr. Eyester diagnosed a herniated disc and degenerative disc disease, and performed surgery on November 16, 1993. After the surgery, the claimant continued to suffer neck pain. (Finding No. 42 and 43).
Dr. Eyester opined that the claimant reached maximum medical improvement of her back on February 7, 1994 and listed specific physical restrictions. (Finding No. 47). Based on Dr. Eyester's opinion, the respondents contend that the claimant is capable of light duty work. The respondents contend that it was error for the trial commissioner to accord the opinions of Dr. Goodrich and Dr. Peck "any weight in his determination of the claimant's inability to work." (Respondents' Brief at 5).
Whether a claimant is totally disabled from working is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers' Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers' Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994); Haugh v. Leake Nelson, 12 Conn. Workers' Comp. Rev. Op. 201, 202-203, 1421 CRB-2-92-5 (March 15, 1994). We will not disturb a trial commissioner's factual determination unless the conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988). Moreover, we may not disturb the trial commissioner's conclusions which are dependent on the weight and credibility accorded the evidence. Miller v. TVCCA, 12 Conn. Workers' Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994), aff'd., 39 Conn. App. 935 (1995).
Contrary to the respondents' assertions, a claimant may have the ability to perform "some type of work" and still be totally disabled.Gerena v. Rockbestos Company, 14 Conn. Workers' Comp. Rev. Op. 394, 395, 1986 CRB-5-94-3 (Oct. 17, 1995). Moreover, a claimant may continue to be temporarily totally disabled after reaching maximum medical improvement. McCurdy v. State, 227 Conn. 261, 267-68 (1993); Johnson v. Park Avenue Restoration, 13 Conn. Workers' Comp. Rev. Op. 209, 1748 CRB-4-93-6 (March 30, 1995). In the instant case, the trial commissioner's conclusion that the claimant was totally disabled is fully supported by the record, including the opinion of Dr. Goodrich who opined that the claimant's overall condition rendered her totally disabled from pursuing gainful employment. (Finding No. 59). Similarly, Dr. Peck opined that the claimant would require ongoing treatment for the rest of her life and that she was unable to obtain gainful employment. (Finding No. 61). It was within the discretion of the trial commissioner, as the trier of fact, to rely upon the opinions of Dr. Goodrich and Dr. Peck in deciding whether the claimant was totally disabled under § 31-307 (a) C.G.S. See Hawley v. Shell Oil Co., 13 Conn. Workers' Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995).
The trial commissioner's decision is affirmed.
Commissioners James J. Metro and Stephen B. Delaney concur.