Opinion
CASE NO. 1509 CRB-8-92-9
MARCH 28, 1994
The claimant was represented by Joshua R. Kricker, Esq., Solomon Stanton.
The respondents were represented by John Thomas Scully, Esq., Cooney, Scully and Dowling.
This Petition for Review from the August 28, 1992 Finding and Award of the Commissioner for the Eighth District was heard August 13, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners John A. Arcudi and Donald H. Doyle, Jr.
OPINION
The claimant has petitioned for review from the August 28, 1992 Finding and Award of the Commissioner for the Eighth District. In that decision, the trial commissioner found (1) that the claimant was not totally disabled subsequent to May 19, 1990 and (2) that, although the claimant may have been partially disabled and possibly entitled to benefits pursuant to General Statutes Sec. 31-308a, he failed to sustain his burden of proof as to the other requirements for an award under that provision. On appeal, the claimant challenges the denial of both temporary total disability benefits and additional benefits for permanent partial disability. We affirm the trial commissioner.
In paragraph 13 of his Finding and Award, the commissioner also found that "in the event the claimant's claim herein was for benefits pursuant to section 31-308(a), C.G.S., he has similarly failed to sustain said burden of proof, and his claim for such benefits is likewise DISMISSED WITH PREJUDICE." Since the claimant had already been paid 52 weeks of benefits for a 10% permanent partial disability to his back, it is clear that any further entitlement to benefits due to partial incapacity is properly considered under Sec. 31-308a, not Sec. 31-308(a). In any event, in this appeal the claimant does not challenge the commissioner's denial of Sec. 31-308(a) benefits.
The claimant's evidence supporting his claim for temporary total disability benefits consisted of the testimony of his treating chiropractor, Dr. Robert Stern. Dr. Stern testified that, on June 13, 1990, the claimant complained of increasing pain due to his compensable back injury. Dr. Stern then opined that the claimant was temporarily totally disabled from June 13, 1990, through February 19, 1991. The claimant argues that this opinion evidence was not directly disputed by any other evidence and therefore the commissioner improperly denied the claim for temporary total disability benefits during that June to February period. We disagree.
The determination of whether the claimant was totally disabled at any particular time is a factual issue to be resolved by the trial commissioner. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454 (1951); French v. Town of Greenwich, 7 Conn. Workers' Comp. Rev. Op. 115, 115-16, 698 CRD-7-88-2 (1989). Because we do not retry the facts, our appellate review is limited to determining whether there was evidence to support such a conclusion or whether the conclusion was based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988).
Although Dr. Stern's testimony regarding the period of alleged total incapacity was not directly disputed, the commissioner was not bound to accept it. See State v. Blades, 225 Conn. 609, 629 (1993); State v. Holloway, 22 Conn. App. 265, 278-79, cert. denied, 215 Conn. 819 (1990); Black v. London Egazarian, 10 Conn. Workers' Comp. Rev. Op. 25, 1098 CRD-7-90-8, rev'd on other grounds, 30 Conn. App. 295, cert. denied, 225 Conn. 916 (1993). Initially, we note that Dr. Stern provided little factual foundation for his opinion. Additionally, records of Dr. Stern's treatment of the claimant show that the frequency of treatment for some time before, during and after the period of alleged total incapacity remained unchanged and that the frequency of treatment during the period of alleged total incapacity was less than it had been during a prior period of total disability. Finally, other evidence in the record sufficiently diminished the probative force of Dr. Stern's testimony to permit the commissioner to reasonably conclude as he did. Dr. Stern opined that the claimant's condition was worse in February, 1991, when the claimant again reached what was termed a "new plateau," as compared to the claimant's previous date of maximum medical improvement. Notwithstanding this evidence of a worsened condition, the respondent presented medical reports showing that the claimant was capable of light duty work both before and after the claimant's condition had allegedly worsened.
The conclusion reached below was thus dependent on the weight and credibility accorded the evidence. We will not disturb conclusions which are so based. Neal v. UTC/Pratt Whitney, 10 Conn. Workers' Comp. Rev. Op. 163, 1199 CRD-8-91-3 (1992). Because we do not retry the facts, it was within the province of the trial commissioner to resolve these inconsistencies or contradictions in the evidence. See Miller v. Kirshner, 225 Conn. 185, 198-99 (1993); State v. Sherbacow, 21 Conn. App. 474, 479-80, cert. denied, 216 Conn. 808 (1990). The commissioner's determination regarding the claim for total incapacity was therefore supported by the evidence and neither based on impermissible or unreasonable factual inferences nor contrary to law. Accordingly, it must stand. Fair v. People's Savings Bank, supra.
We turn now to the claimant's challenge to the denial of Sec. 31-308a benefits. A fair reading of the commissioner's decision shows that, rather than being totally disabled, the commissioner concluded that the claimant was, at most, partially disabled throughout the time period in issue. See Finding and Award, Paragraphs 11 and 12. The claimant's partial disability in and of itself, however, does not mandate an award of benefits pursuant to Sec. 31-308a. An award of such benefits is discretionary, and our review of the record shows no abuse of discretion in the denial of these benefits. See Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers' Comp. Rev. Op. 177, 181, 876 CRD-6-89-6 (1991) (upholding denial of Sec. 31-308a benefits during period when claimant failed to do any job searches).
We, therefore, affirm the trial commissioner and deny the appeal.
Commissioners John A. Arcudi and Donald H. Doyle, Jr. concur.