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Hayden-LeBlanc v. New London Broadcasting Co.

CASE NO. 2128 CRB-2-94-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 24, 1996

JANET L. HAYDEN-LEBLANC

CLAIMANT-APPELLANT

(CROSS-APPELLEE)

v.

NEW LONDON BROADCASTING CO.

EMPLOYER

and

UNITED STATES FIDELITY & GUARANTEE CO.

INSURER

RESPONDENTS-APPELLEES

(CROSS-APPELLANTS)

APPEARANCES:

The claimant was represented by Lewis C. Maruzo, Esq., Horwitz & Maruzo, P.C., 74 West Main St., Norwich, CT 06360.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the July 28, 1994 Finding and Dismissal of the Commissioner acting for the Second District was heard October 13, 1995 before a Compensation Review Board panel consisting of Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review of the July 28, 1994 Finding and Dismissal of the Commissioner for the Second District. In that decision, the trial commissioner found that the claimant fell while attempting to sit at her office chair on December 30, 1986; that the claimant failed to meet her burden of proving that her medical treatment for lumbar symptomalogy commencing November, 1988 was causally related to her fall at work; and that the medical treatment provided to the claimant commencing November, 1988 was not authorized treatment. In support of her appeal, the claimant makes numerous factual arguments, essentially seeking to have this board retry her case, which we may not do. We affirm the trial commissioner’s decision.

A brief procedural history is in order. The parties in the instant case specifically agreed to bifurcate the hearings so that the issue of whether the claimant filed a timely notice of claim would be heard prior to commencing hearings regarding the compensability of the claimant’s injury.1 Accordingly, Commissioner Waller held hearings limited to the jurisdictional issue and entered a Finding and Award on January 6, 1992 in which he concluded that the claimant had filed a timely notice of claim. The respondents appealed that decision to the Compensation Review Board, which affirmed the trial commissioner’s decision on January 5, 1994.2 The respondents filed an appeal to the Appellate Court from the board’s January 5, 1994 decision, which appeal is presently pending. Commissioner White held hearings regarding the compensability of the claimant’s condition including her alleged temporary total disability and medical treatment, and issued a Finding and Award on July 28, 1994, which is the subject of our present review. The respondents have filed a cross-appeal from the July 28, 1994 Finding and Dismissal limited to the contention that the claimant did not file a timely notice of claim. As the timeliness of the notice of claim is the subject of the appeal pending at the Appellate Court, and is not presently before us, we will not address it.

The claimant contends that the prior Finding and Award issued on January 6, 1992 contradicts the July 28, 1994 Finding and Dismissal. We disagree. The January 6, 1992 Finding and Award was limited to the issue of whether the claimant filed a timely notice. (See footnote 1, supra). Issues regarding the compensability of the claimant’s alleged symptoms and medical treatment were not litigated at that time. In fact, the claimant’s attorney specifically stated at the formal hearing before Commissioner White that only the issue of notice had been heard by the prior trial commissioner, and that the claimant’s workers’ compensation claim had not been accepted as compensable by the employer. (9/28/92 Transcript at p. 3). The January 6, 1992 Finding and Award specifically states that the respondents are to pay compensation “which may hereafter be found to be due” thus leaving open other issues such as causation and authorized treatment for future hearings. Moreover, Finding No. 2 of the July 28, 1994 Finding and Award states: “The parties requested the within formal to resolve the claimant’s claims re the low back (lumbar) symptomalogy and its etiology along with the extent of disability and questions raised as to authorized versus unauthorized treating physicians.”

The claimant urges us to find that the fall from her chair on December 30, 1986 caused her to suffer low back symptoms and caused her to be temporarily totally disabled commencing November, 1988 through September 28, 1992. The claimant contends that the medical evidence presented at the formal hearing does not support the trial commissioner’s decision, but rather overwhelmingly supports her claims for compensation. Essentially, the claimant is seeking to have this board retry her case, which we may not do. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The trial commissioner set forth in his opinion that the claimant’s initial treater’s notes and reports made in 1987 did not reference any lumbar or leg pain; that the claimant’s January 13, 1987 neurological examination was negative; that the first notation of any lumbar symptomalogy by the initial treater was not made until 1990; and that the claimant engaged in an exercise and running regime prior to her symptomalogy of November 1988. The trial commissioner further found that Dr. Barnett, after examining the claimant and reviewing her medical history and records, opined that all of the claimant’s treatment from 1988 forward was unrelated to her fall at work on December 30, 1986. The commissioner’s determination that the claimant’s fall at work was not a substantial cause of her lumbar symptomalogy was clearly based upon the weight which he accorded the evidence, including medical records and testimony. We will not disturb such a determination. Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994); Dusto v. Rogers Corp., 12 Conn. Workers’ Comp. Rev. Op. 80, 1496 CRB-1-92-8 (Feb. 4, 1994); Pulcinella v. Prudential Insurance Company, 10 Conn. Workers’ Comp. Rev. Op. 251, 1236 CRD-6-91-5 (Jan. 11, 1993). Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 1000 CRD-5-90-4 (Oct. 30, 1991); In the instant case, the trial commissioner’s decision is adequately supported by the record.

The claimant further argues that the commissioner erroneously denied her Motion to Correct. On review of the denial of a Motion to Correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion to Correct also may be denied properly where the legal conclusion of the commissioner would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). We find no error in the commissioner’s denial of the claimant’s motion to correct.

The final issue which we will address is the issue of authorized medical providers. The trial commissioner ruled that the claimant’s initial authorized treater was Dr. Elliot, and that her present authorized treater is Dr. Thompson. The claimant seeks to have numerous other medical providers whom she visited commencing November, 1988 to be deemed authorized treaters. However, the claimant did not obtain a commissioner’s approval for any other medical providers. The record fully supports the trial commissioner’s findings3 and decision regarding authorized treaters. See Farkash v. Gerelco Inc., 12 Conn. Workers’ Comp. Rev. Op. 9, 1566 CRB-8-92-11 (Jan. 12, 1994). Moreover, as the trial commissioner found that her symptoms commencing in November 1988 were not related to her work injury, her medical treatment for such symptoms is not compensable. See Kiley v. Executone of Fairfield, Inc., 2 Conn. Workers Comp. Rev. Op. 103, 276 CRD-4-83 (Aug. 29, 1984).

The trial commissioner’s decision is affirmed, and the claimant’s appeal is dismissed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 At the formal hearing on October 22, 1990, the parties agreed that the issue was limited to whether the claimant filed a timely notice of claim. (Transcript at p.2). BACK TO TEXT

2 Hayden-Leblanc v. New London Broadcasting 12 Conn. Workers’ Comp. Rev. Op. 3, 1373 CRD-2-92-1 (Jan. 5, 1994). BACK TO TEXT

3 See Finding No. 12, 13, and 20. BACK TO TEXT

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