ALICEA v. ABCD OF BRIDGEPORT, NO. 4318 CRB-4-00-12 (11-15-2001)


CASE NO. 4318 CRB-4-00-12 CLAIM NO. 400032544Compensation Review Board WORKERS’ COMPENSATION COMMISSION
NOVEMBER 15, 2001

The claimant was represented by H. Jeffrey Beck, Esq., 251 North Avenue, Suite B-107, Bridgeport, CT 06606.

The respondents were represented by Colette Griffin, Esq., Howd
Ludorf, 65 Wethersfield Avenue, Hartford, CT 06114-1190.

This Petition for Review from the November 21, 2000 Finding and Award in part, Finding and Dismissal in part of the Commissioner acting for the Fourth District was heard July 20, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Stephen B. Delaney.


The claimant has petitioned for review from the November 21, 2000 Finding and Award in part, Finding and Dismissal in part of the Commissioner acting for the Fourth District. She contends on appeal that the trier erred by failing to find that she was disabled from work due to depression even though he found her psychological condition to be compensable. We affirm the trial commissioner’s decision.

The claimant sustained a compensable low back injury on May 2, 1997, which led to discectomy surgeries on her back in November 1997 and December 1998. Her treating physician is Dr. Zimmerman, who stated that she reached maximum medical improvement on March 18, 1999 with a 12% permanent partial disability of the back. Dr. Zimmerman explained that the claimant’s recovery was being hindered by her long history of depression. He described her as a chronic pain patient with a history of degenerative spine disease. Dr. Trevisan, another treating physician, opined that the claimant suffers from major depression that was caused by the onset of her 1997 compensable injury. He also stated that the claimant was unable to work due to her depression as of February 3, 2000. Meanwhile, following a 1998 independent medical examination, Dr. Rubenstein opined that the claimant did not suffer from depression at all, and that she could work if she chose. As of August 19, 1999, Dr. Zimmerman thought that the claimant was experiencing additional emotional behavioral issues that eliminated potential employment.

The trier accepted the claimant’s testimony regarding the symptoms she exhibits due to her psychiatric condition, and credited Dr. Trevisan’s diagnosis of major depression related to a compensable back injury over the contrary diagnosis of Dr. Rubenstein. He rejected Dr. Trevisan’s opinion, however, insofar as he deemed the claimant unable to work, and upheld the discontinuance of temporary total disability benefits as of June 1, 1999. The claimant has filed an appeal from that portion of the trier’s decision. In her brief, she argues that the trial commissioner’s findings are inconsistent with his legal conclusion based on the “additional emotional behavior issues” cited by Dr. Zimmerman, and based on the trier’s failure to state whether or not he accepted Dr. Rubinstein’s explanation as to why the claimant possessed a work capacity.

As in any workers’ compensation case, the claimant here bears the burden of proving that she has sustained a compensable injury, that this injury has caused whatever symptoms she seeks to attribute to it, and that these symptoms have left her unable to work (in cases where such disability benefits are sought). Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001); Gibbons v. UTC/Pratt Whitney, 4000 CRB-8-99-3 (April 12, 2000), aff’d, 63 Conn. App. 482 (2001). The individual whom she must persuade is the trial commissioner. The commissioner’s role is to evaluate the evidence and testimony offered by the parties, and to decide which, if any, version of the facts he finds the most credible. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999). He possesses the sole authority to perform this task, and this board may not second-guess a trier’s decisions regarding credibility on review. Id.; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7
(July 17, 1998). We may disturb the findings of the trier only if they contain facts found without any supporting evidence, or if they omit material facts that are truly undisputed. Warren, supra. The legal conclusions of the trial commissioner must also be upheld 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., quoting Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In weighing the various reports of doctors, a trial commissioner is free to credit part of an expert’s testimony while rejecting another part, as long as the medical evidence upon which he ultimately relies consists of an opinion that has been stated within a reasonable degree of medical probability. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447 (2001). He is also free to disregard the reports of experts entirely. Indeed, if a trier thought that none of the evidence offered by either party in a case was credible, there would be no legal error; the respondent would essentially win by default, because the claimant could not satisfactorily prove her case. Warren, supra.

Here, on the strength of Dr. Trevisan’s report and deposition, the claimant was able to persuade the trier that her accepted back injury was the cause of her psychiatric condition. However, the portion of his report that declared her unable to work was not as persuasive to the trial commissioner, and he decided not to rely on it in his findings, noting that the doctor did not have all of the claimant’s relevant historical information. See Claimant’s Exhibit D. Dr. Zimmerman’s statement that the claimant’s lumbar spine permanency was accompanied by “additional emotional and behavioral issues that eliminate potential for employment;” Respondent’s Exhibit 5; was not discussed in the portion of the trier’s conclusions where he specifically singled out various opinions as credible and not credible. In fact, the trier was not required to make such an express “credibility ruling” on any of the evidence, though he apparently chose to do so with regard to Dr. Trevisan’s opinion and part of Dr. Rubinstein’s opinion for the sake of clarity. Admin. Reg. § 31-301-3. We must infer, therefore, that the trier did not find Dr. Zimmerman’s statement persuasive, insofar as it conflicted with his ultimate conclusion.

We are aware of no evidence or legal precedent that purports to conclusively establish that one who suffers from major depression is per se unemployable. Proving a lack of work capacity differs from proving that one suffers from depression in the first place. Now, one might infer from the trier’s findings that he agreed with Dr. Rubinstein’s ultimate conclusion that the claimant was able to work, even though he disagreed with that doctor on the underlying issue of whether she suffered from depression. We need not take such a step, however, in considering the claimant’s appeal. The trier was not required to allude to evidence that persuasively refuted the claimant’s disability allegation in dismissing her claim for such benefits. It is more than enough that he declared unpersuasive the portion of Dr. Trevisan’s opinion that supported her claim of lost work capacity. The claimant had the burden of proving each element of her claim, but succeeded in establishing only the compensability of her psychiatric condition. Such a result does not betoken any kind of legal error on the part of the trier. Therefore, this board is required to affirm his decision on appeal.

The trial commissioner’s decision is hereby affirmed in its entirety.

Commissioners James J. Metro and Stephen B. Delaney concur.

CERTIFICATION THIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 15th of November 2001 to the following parties:


H. JEFFREY BECK, ESQ. 7099 3400 0009 0437 9738


COLETTE GRIFFIN, ESQ. 7099 3400 0009 0437 9721

Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers’ Compensation Commission