D'Amico v. Department of Correction

812 A.2d 17, 73 Conn. App. 718, 2002 Conn. App. LEXIS 600
CourtConnecticut Appellate Court
DecidedNovember 26, 2002
DocketAC 22242
StatusPublished
Cited by17 cases

This text of 812 A.2d 17 (D'Amico v. Department of Correction) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D'Amico v. Department of Correction, 812 A.2d 17, 73 Conn. App. 718, 2002 Conn. App. LEXIS 600 (Colo. Ct. App. 2002).

Opinions

Opinion

FOTI, J.

The plaintiff, Daniel D’Amico, appeals from the decision of the workers’ compensation review board (board) affirming the August 28,2000 finding and award of the workers’ compensation commissioner for the fifth district (commissioner), in which the commissioner dismissed the plaintiffs claim for total disability benefits. The plaintiff claims that the board improperly affirmed the dismissal because (1) the commissioner could not reasonably or legally deny the claim for total disability benefits on the basis of the record before him, and (2) the commissioner improperly denied the plaintiffs motion to correct the commissioner’s findings. We disagree and affirm the decision of the board.

The following facts and procedural history are relevant to the plaintiffs appeal. The plaintiff was injured on September 24,1992, in an altercation with an inmate while employed as a correction officer with the department of correction. The plaintiff suffered physical injuries to his neck, back, shoulders and arms. In addition to his orthopedic injuries, the plaintiff sought workers’ compensation benefits for related medical conditions, [720]*720namely, hypertension, fibromyalgia and reflex sympathetic dystrophy of the right arm, as well as for related psychiatric conditions, including posttraumatic stress disorder and depression.

The commissioner issued an initial finding and award on April 12, 1999. He found that in addition to the compensable orthopedic injuries, the defendant department of correction should pay for all reasonable and necessary medical expenses resulting from the fibromyalgia and the reflex sympathetic dystrophy. Further, the commissioner found that the plaintiff was entitled to treatment for posttraumatic stress disorder and depression, including treatment to be received at the Spaulding Rehabilitation Center, a Massachusetts inpatient pain management facility.1 The commissioner denied the plaintiffs claim for compensation benefits for hypertension.

Pursuant to an approved form 36,2 the state discontinued its payment of total disability benefits and began paying the plaintiff permanent partial disability benefits as of March 28,1995. The commissioner found that this was an appropriate action. Only one physician, Mario Leicach, believed that the plaintiff was completely disabled physically. The commissioner found that as to work capacity and disability, the opinions of Steven [721]*721Beck, the plaintiffs treating physician, and Donald Grayson, a psychiatrist, and an evaluation conducted on behalf of the state at Gaylord Hospital were more credible.

Gaylord Hospital had conducted its evaluation on March 28, 1993, and recommended that the plaintiff receive psychological treatment along with vocational training, but that the plaintiffs physical condition should not preclude employment. On January 5, 1995, Beck opined that the plaintiff had reached maximum medical improvement and should pursue a limited work return. Grayson, who evaluated the plaintiff on March 11, 1996, at the request of the commissioner, indicated that the plaintiffs depression would not preclude him from working.

The commissioner also found that since the injury, the plaintiff had finished his bachelor’s degree and completed a master’s degree in business administration through correspondence courses, including researching and typing lengthy research papers. On the basis of those opinions and the plaintiffs ability to further his education, the commissioner found that the plaintiff had reached maximum medical improvement from a physiological standpoint and that the plaintiff had some work capacity.

Because there was no evidence, however, that the plaintiff had reached a psychiatric maximum medical improvement point, the commissioner made his conclusion approving the reduction to permanent partial disability without prejudice and subject to a possible later claim of total disability “based upon a change in the [plaintiffs] condition and/or the opinions of [Robert F.] Swords,” the plaintiffs appointed treating physician for posttraumatic stress and depression. The plaintiff did not seek review of that first finding and award.

[722]*722Consequently, the plaintiff later sought to have the commissioner award him total disability benefits because of the plaintiffs alleged lack of work capacity due to his psychiatric condition. The commissioner conducted another formal hearing on April 3,2000, in which he found the following additional facts.

Swords testified by deposition that the plaintiffs condition had “waxed and waned” during the course of treatment. He admitted that there might well have been periods of time in which the plaintiff was capable of work, although more often than not he was unemployable. Swords’ written report of October 22,1998, stated that as of the time of the report and into the indeterminate future, the plaintiff was unemployable.

Beck, who earlier had been supportive of the plaintiffs work capacity, found that as of January 29, 2000, the plaintiffs capabilities were severely limited. When pressed, however, he did believe him capable of “part-time, infrequent employment [that] was self-directed.”

The plaintiff testified that he had been searching for work for the last eight years. He had found a flexible job entering information into a computer. He further testified that he was able to drive a car, help his children with schoolwork, occasionally shop for groceries and, at times, do other household chores.

On August 28, 2000, the commissioner produced another formal finding and award, which is the subject of this appeal. The commissioner concluded, on the basis of the plaintiffs testimony regarding his activities, the testimony of Swords and Beck, and the evidence underlying the April 12, 1999 finding and award, that the plaintiffs condition had not changed in such a way as to support a claim for total disability. On the basis of that conclusion, the commissioner dismissed the plaintiffs claim for total disability.

[723]*723The plaintiff filed a motion to correct the commissioner’s August 28, 2000 finding and award, which the commissioner denied. The plaintiff sought review by the board of both that decision and the August 28, 2000 finding and award. The board affirmed the commissioner’s decisions in an opinion dated August 3, 2001. The plaintiff then appealed to this court. We now affirm the board’s decision.

Before reaching the substance of the plaintiffs appeal, we first set out our well settled standard of review in workers’ compensation cases. “As a preliminary matter, we note that when a decision of a commissioner is appealed to the review division, the review division is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts.” (Internal quotation marks omitted.) Ricigliano v. J. J. Ryan Corp., 53 Conn. App. 158, 160, 728 A.2d 1161 (1999), appeal dismissed, 252 Conn. 404, 746 A.2d 787 (2000). “It is the power and the duty of the commissioner, as the trier of fact, to determine the facts.” Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988).

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Cite This Page — Counsel Stack

Bluebook (online)
812 A.2d 17, 73 Conn. App. 718, 2002 Conn. App. LEXIS 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/damico-v-department-of-correction-connappct-2002.