CORDELL GOULBOURNE CLAIMANT-APPELLANT
v.
STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION EMPLOYER SELF-INSURED
and
GALLAGHER BASSETT SERVICES, INC. THIRD-PARTY ADMINISTRATOR RESPONDENTS-APPELLEES
No. 6329 CRB-1-19-5
Connecticut Workers Compensation
Compensation Review Board Workers Compensation Commission
June 10, 2020
This
Petition for Review from the April 30, 2019 Finding and
Dismissal by Daniel E. Dilzer, the Commissioner acting for
the First District, was heard January 31, 2020 before a
Compensation Review Board panel consisting of Commission
Chairman Stephen M. Morelli and Commissioners Randy L. Cohen
and William J. Watson III.[1]
The
claimant was represented by James Quinn, Esq., Quinn &
Quinn, LLC
The
respondents were represented by Lawrence Widem, Esq.,
Assistant Attorney General, Office of the Attorney General
OPINION
STEPHEN M. MORELLI, CHAIRMAN.
The
claimant has appealed from a Finding and Dismissal (finding)
reached by Commissioner Daniel E. Dilzer (commissioner) on
April 30, 2019, which determined that the claimant had not
established his claim for temporary total disability benefits
under General Statutes Sec. 31-307(a).[2] The claimant argues
that this decision was against the weight of the evidence and
the commissioner erred in not crediting the opinion of the
Commissioner’s Medical Examiner that he lacked a work
capacity. The respondents argue that the claimant simply
failed to meet his burden of persuasion in this forum and the
decision of the commissioner should be affirmed.
While
we note that the commissioner in this matter did not find the
claimant a credible witness, we are troubled by the manner in
which the commissioner addressed the opinions presented by
the commissioner’s examiner in this matter. It appears
that both may have conflated the concept of medical
disability and vocational disability. Therefore, in
accordance with our precedent in Hubbard v. University of
Connecticut Health Center, 5705 CRB-6-11-12 (November
30, 2012), we remand this matter for further proceedings.
The
commissioner reached the following factual findings at the
conclusion of the formal hearing. He noted the long history
of the claimant’s claim for benefits, which started
after he left the employ of the Department of Correction
(DOC) in November 2001.[3] He also noted that it is now
undisputed that the claimant sustained a compensable coronary
artery injury due to workplace stress on February 20, 2001,
but that his prior bid for total disability benefits was
rejected in 2013. Findings, ¶ 2. He also examined the
medical opinions presented by the claimant’s treating
physician, Kathleen Kennedy, M.D.
Kennedy,
in October of 2010, had assigned a 75 percent permanent
partial disability to the claimant’s heart. Findings,
¶ 3. “At the Formal hearing in 2013, the
Commissioner found the Claimant sustained a fifty-six (56%)
permanent partial disability rating to his heart.”
Id. In May of 2013, Kennedy opined the claimant was
disabled from a cardiac standpoint from employment that would
place him under physical or emotional stress. Findings,
¶ 4. “On October 16, 2014, Dr. Kennedy opined the
Claimant is disabled from all work due to his severe and
progressive coronary artery disease.” Findings, ¶
5. “Then, in October of 2016, Dr. Kennedy wrote,
‘I am not proficient in disability determination and
therefore feel uncomfortable in making an official disability
determination. However . . . it is my medical opinion that he
has significant cardiac disability that severely limits his
ability to manage the physical and emotional stressors of
work.’” Id.
The
claimant testified at length at the formal hearing. He
testified that subsequent to his employment at DOC he had
worked for The Hartford Association for Retarded Citizens but
had to leave the position because of a shoulder injury. See
December 18, 2018 Transcript, p. 27. He also held a position
with My People Services as a mentor for at-risk youths.
Id., pp. 27-28. He was last employed, he testified,
in 2009 or 2010. Id., pp. 38-39. He worked as a
literacy volunteer for several years until two years ago.
The
claimant also testified that he had received two degrees
after leaving DOC, a Bachelor of Arts degree from Charter Oak
State University in 2006 and a Master of Business
Administration from the University of Phoenix in 2008, but
neither degree had helped him obtain employment. See
Findings, ¶¶ 11-12. He also testified as to his
work searches in recent years. He said he had looked for work
unsuccessfully on the internet but offered no corroboration
for this testimony. See Findings, ¶13. He said that a
thumb drive that had stored his job searches had crashed and
he retained no other records and did not know how to download
records from his computer, nor had he asked anyone else to do
so. See Findings, ¶ 15. He said he now did not use a
computer and relied on his wife to turn on an iPad tablet.
See Findings, ¶ 16.
As for
his medical condition, the claimant testified it had worsened
since 2013. Nonetheless, the commissioner noted that he has
not been hospitalized since 2013 and the permanency rating to...
