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Pallotto v. Blakeslee Prestress, Inc.

CASE NO. 3651 CRB-03-97-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 17, 1998

ANTHONY M. PALLOTTO

CLAIMANT-APPELLANT

v.

BLAKESLEE PRESTRESS, INC.

EMPLOYER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Joseph L. Gillis, Esq., Gillis & Gillis, P.C., Two Whitney Avenue, Suite 502, New Haven, CT 06510-5104

The Second Injury Fund was represented by Kenneth H. Kennedy, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the July 17, 1997 Finding and Award of the Commissioner acting for the Third District was heard March 27, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 17, 1997 Finding and Award of the Commissioner acting for the Third District. The trial commissioner found in that decision that the claimant had a compensable 75% permanent partial disability (PPD) of each leg, an 8% PPD of the right master arm and a 6% PPD of the left arm. The trial commissioner ordered the Second Injury Fund (Fund) to pay specific benefits for those injuries, and left open for future hearings the issue of the claimant’s entitlement to total disability. We now affirm that decision.

The claimant suffered a compensable injury while employed at Blakeslee Prestress on September 1, 1988. In his Finding and Award dated September 15, 1994, the trial commissioner found that the claimant had a 25% PPD of the lumbar spine and 20% PPD of the cervical spine. No ruling was made at that time regarding the upper and lower extremities.

On March 25, 1997 a Formal Hearing was held to decide whether the disabilities in the claimant’s extremities were compensable. The claimant was treated for his spinal injuries by Dr. Gary Bloomgarden, who testified that the claimant has a 75% PPD of each leg, with a maximum medical improvement date of September 15, 1991. Dr. David Goodkind issued a report December 21, 1990 stating that the claimant suffered from carpal tunnel syndrome as a result of his employment, resulting in a 55% PPD in his right master arm and a 53% PPD in his left arm.

An independent medical examination was conducted by Dr. Robert Tross on August 28, 1991. Dr. Tross indicated in his report that the claimant has a 42% PPD of his right master arm and a 38% PPD for the left arm. He attributed only 8% of the disability of the right arm and 6% of the left to carpal tunnel syndrome, assigning responsibility for the remaining portion to cervical spondyloarthropathy. The trial commissioner found no medical evidence linking the cervical spondyloarthropathy to the work injury of September 1, 1988. On March 2, 1992, liability for the claimant’s back and neck injuries was transferred to the Fund pursuant to § 31-349 C.G.S.

In his July 17, 1997 Finding and Award, the trial commissioner decided that the claimant’s leg injuries were caused by the September 1, 1988 incident, and that the claimant had an 8% PPD of the right master arm and a 6% PPD of the left arm which were causally related to his repetitive work performed at Blakeslee Prestress.1 Following the trial commissioner’s issuance of his Finding and Award, the claimant appealed and the Fund cross-appealed.2 In conjunction with his appeal, the claimant has also filed a Motion to Submit Additional Evidence.

We first address the Motion to Submit Additional Evidence and Testimony. The claimant seeks to submit a medical report from Dr. Michael Erdil dated December 3, 1997, which he alleges “is consistent with the testimony of the claimant’s treating surgeon, Gary Bloomgarden, M.D.” The only reason offered by the claimant for not presenting this report at the Formal Hearing was that it was not available at the time of the March 25, 1997 formal hearing. This Board has “repeatedly held that it is the claimant’s burden to recognize and resolve any inconsistencies in the evidence at the formal hearing, whether or not those discrepancies seemed significant to the claimant at the time of the hearing. Holle v. The William Backus Hospital, 14 Conn. Workers’ Comp. Rev. Op. 169, 2039 CRB-2-94-4 (May 10, 1995); Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-209, 1289 CRD-6-91-9 (Dec. 2, 1992).” Liano v. City of Bridgeport, 3299 CRB-4-96-2 (March 25, 1997). This includes the duty of obtaining the necessary medical evidence to meet one’s burden of proof at the formal hearing.

Under Admin. Reg. § 31-301-9, a party must allege that additional evidence is material and that there was a good reason for failing to admit it during the trial stage of the proceedings in order to prevail on a motion to submit additional evidence. The failure of a party to anticipate the need for further medical testimony is not generally considered a “good reason.” See Lesczynski, supra. Further, the claimant describes Dr. Erdil’s opinion as being “consistent” with the testimony of Dr. Bloomgarden. In so doing, he does not instill this panel with confidence that his proffered evidence would be likely to affect the outcome of the case rather than merely being cumulative. See Rogers v. Crawford & Company, 2154 CRB-3-94-9 (May 4, 1995). We therefore deny the claimant’s Motion to Submit Additional Evidence and Testimony.

Turning to the merits, we remind the parties of our standard of review regarding the factual findings of a trial commissioner, and the denial of a Motion to Correct. A trial commissioner’s fact-finding authority entitles him to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses, even if such evidence seems to be uncontradicted. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). 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 corrections are immaterial because the outcome of the case 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). This board does not retry the facts, and will not disturb the legal conclusions that the trier has drawn from the findings unless they are the product of an incorrect application of the law to the facts or an inference illegally or unreasonably drawn from them. Fair v. People’s Savings Bank, 207 Conn. 535, 539-41 (1988).

The claimant argues in his brief that the commissioner’s conclusion that the claimant’s upper extremity impairments were not related to his September 1, 1988 incident is not supported by the facts. Specifically, the claimant states that the trier’s conclusion that there was no medical evidence to relate the cervical spondyloarthropathy to the claimant’s work-related injuries is unfounded. We remind the claimant that the burden was upon him to prove that a causal link existed between the injury he suffered at work and his cervical spondyloarthropathy. The trial commissioner was entitled to disregard the evidence offered by the claimant regarding this issue if he did not find it sufficiently persuasive. Brown v. Connecticut Aerosol, 3169 CRB-3-95-5 (April 7, 1997); Jusiewicz, supra.

Dr. Tross concluded that the PPD of the claimant’s arms that was not caused by carpal tunnel syndrome was due to cervical spondyloarthropathy. He could not comment on whether that spondyloarthropathy antedated the September 1, 1988 incident, as he did not have the opportunity to review the claimant’s cervical radiographs. Dr. Tross did note, however, that the claimant did not report neck symptoms subsequent to the 1988 injury. (Claimant’s Exhibit H). The claimant points to the contradictory testimony of Dr. Bloomgarden, who opined that the claimant’s upper extremity impairments are related to a cervical spinal cord injury sustained at work on September 1, 1988 (Claimant’s Exhibit B, pages 16 & 17). As we noted above, the trial commissioner alone has the power to determine witness credibility. By stating that there is “no medical evidence” to support the compensability of the cervical spondyloarthropathy in ¶ 17 of his findings, the commissioner was actually stating that he found no persuasive medical evidence to support the existence of a causal connection between the portion of the claimant’s upper extremity disability that is not due to carpal tunnel syndrome and his 1988 injury. The trial commissioner evidently found the testimony of Dr. Bloomgarden on this issue less compelling than the testimony of Dr. Tross, and drew his conclusions accordingly. We are not in a position to disturb this finding on review.

The trial commissioner’s decision is affirmed.

Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.

1 We note that the trial commissioner stated in ¶ 15 of his findings that Dr. Tross indicated the claimant had a 42% PPD of the left arm. However, Dr. Tross’ August 28, 1991 report actually states that the left arm had 38% PPD, and the right arm 42% PPD. Claimant’s Exhibit H. This discrepancy was not raised by either party, nor does it affect the trial commissioner’s finding attributing 8% of the disability of the right arm and 6% of the left to carpal tunnel syndrome, which percentages are consistent with Dr. Tross’ report. BACK TO TEXT

2 The Fund failed to file an appellate brief, Reasons for Appeal, or a Motion to Correct pursuant to Admin. Reg. §§ 31-301-2 and 31-301-4. Subsequently, the Fund moved to withdraw its appeal, which motion was granted on March 23, 1998. Thus, we need not discuss the cross-appeal any further. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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