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Soto v. Hawie Manufacturing Co.

CASE NO. 3787 CRB-04-98-03

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 21, 1999

GRETTEL SOTO

CLAIMANT-APPELLANT

v.

HAWIE MANUFACTURING CO.

EMPLOYER

and

ROLLINS HUDIG HALL

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Joseph Tauber, Esq., 99 Prospect Street, Stamford, CT 06901.

The respondents were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the February 27, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District was heard October 23, 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 February 27, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District. She argues on appeal that this board should reverse the trier’s dismissal of her claim because he denied certain corrections to the findings that sought to counteract his alleged misinterpretation of the evidence. We affirm the trial commissioner’s decision.

This matter was initially decided in favor of the claimant by a different trial commissioner. However, concern over that commissioner’s discussion of a proposed settlement during the formal hearing required this board to vacate that award and remand this case for a new trial before a different commissioner. Soto v. Hawie Manufacturing Co., 16 Conn. Workers’ Comp. Rev. Op. 196, 3238 CRB-4-95-12 (May 20, 1997). On remand, the same attorneys that had previously represented the parties appeared before the new trier of fact. They stipulated that the commissioner should decide the merits of this case based upon the testimony and exhibits from the earlier formal hearing, altered only by the striking of several pages from the transcripts, the removal of one exhibit, and the introduction of two others.

The trier found that the claimant was employed as an assembler who operated a kick press at Hawie Manufacturing from early June through late September 1994. She spent slightly more than two months using two kick press machines to assemble small metal clips. In late August, the claimant was assigned to operate a third machine that assembled larger clips, allegedly requiring her to apply greater pressure with her right foot. Each of these clips consisted of one to four metal parts. The claimant would fit the pieces together and insert the assembled clip into whichever kick press machine she was using. Then, while sitting on a chair, she would slide the foot pedal forward with a motion of her knee and lower leg, crimping together the metal parts of the clip. She estimated that she made this motion between 100-200 times per hour, for seven out of the eight hours that she worked each day. Those clips that consisted of three or four parts took longer to align by hand than did the simpler clips, and thus the claimant made fewer repetitive foot motions per hour during her intervals with the more intricate fasteners.

The claimant, who had experienced kidney problems prior to her employment at Hawie Manufacturing, did not return to work after September 30, 1994. According to her employer, she initially indicated that she would be out for only a week. The claimant’s supervisor noted that the claimant thought her knee and back pain was related to her kidney difficulties at the time she reported her injury. However, the claimant visited the Industrial Medical Center at Bridgeport Hospital on October 3, 1994, where she was diagnosed with a lumbar sprain after complaining of right leg and back pain. Dr. Cole advised her to return to light work on October 14, 1994, and referred her to Dr. Brennan for physical therapy. A November 28, 1994 MRI revealed a herniated disc at L5/S1.

The history that the claimant related to Dr. Brennan in November 1994 described her work at Hawie Manufacturing as the operation of a machine by pumping heavy levers with her feet. She also related a history of a work injury to Dr. Serena, whom she saw in July 1995, leading to his conclusion that her use of the kick press caused her slipped disc. However, the respondents called to the stand an ergonomics expert who characterized the leg movement needed to run the foot press as a gliding motion that required the use of very little force. He found no evidence that this activity could have contributed to the claimant’s back injury. Dr. Robinson, who reviewed the records and a video of two kick presses in action (whose filming was overseen by the ergonomics expert), also opined that the claimant’s assembly work did not cause her herniated disc. He saw no stress being transmitted to her back when she depressed the pedal of the kick press, and could perceive no ergonomic mechanism that would account for the herniated L5-S1 disc.

The trier found that the claimant did not establish by a preponderance of the evidence that her herniated disc was caused by her use of the kick press machines. He cited the lack of definitive medical evidence based on the objective facts of her actual job, noting that the medical opinions of the claimant’s treaters fully relied upon the claimant’s inconsistent versions of her work history. The commissioner found the video of the kick press machine, the on-site ergonomic report, and Dr. Robinson’s opinion of causation to be the most persuasive pieces of evidence. He thus dismissed the claim, and denied the claimant’s subsequent Motion to Correct. The claimant has appealed that decision.1

When this board reviews a decision by a trial commissioner, we do not retry the case. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Instead, we examine that decision to ensure that the trier of fact has not committed legal error of any kind. As the fact-finder, he is entitled to weigh the credibility of the evidence, including medical reports and the testimony of all witnesses. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). When we review his findings, we may disturb them only if they contain facts found without any supporting evidence, or if they fail to include material and undisputed facts. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This standard of deference encompasses the denial of proposed corrections. Id., 71. Conclusions of law must also stand unless they result from an incorrect application of the law to the subordinate facts, or from an inference illegally or unreasonably drawn from them. Fair, supra; Webb, supra, 71.

In this case, as in any workers’ compensation case, it was the claimant’s burden to prove to the trial commissioner that she suffered a compensable injury. Pallotto, supra. The trier of fact is not required to give credence to any of the evidence, if he so chooses; we therefore cannot reverse a commissioner’s decision on the ground that he failed to rely on the opinion of a particular doctor, or the statements of a certain witness. Jusiewicz, supra. Based on the findings below, the claimant’s assertions of error and her attacks upon the evidence would need to accomplish more than to discredit the substance and analysis of those exhibits found credible by the trier. She would also need to elevate the countervailing medical opinions to a position of credibility—a pronouncement that this board cannot make on review, as it would be the exclusive province of the fact-finder.

Here, the claimant faults the trial commissioner for being persuaded by Dr. Robinson’s evaluation. Contrary to the claimant’s contentions, Dr. Robinson represented that he had personally viewed the videotape of the kick press that was prepared under the supervision of the ergonomics expert. Deposition, p. 6. The doctor’s description of the machine’s function appears to reflect that fact as well. Id. He stated that, based on the means by which this machine is operated, the claimant’s herniated disc could not have resulted from its use. Id., 10-11. He confirmed that his opinion was given within a reasonable degree of medical probability, and he did not believe that a personal examination of the claimant would have aided his diagnosis. Id., 11. Dr. Robinson did not compromise the reliability of his conclusions by stating that he would “have an open mind” and “might change [his] opinion” if the claimant were somehow able to show that she had actually pushed on the pedal 480-500 times per day. Indeed, immediately after he made that remark in response to facts hypothesized by claimant’s counsel, Dr. Robinson explicitly reaffirmed his opinion that there was no evidence of a causal link “based on the motion that was revealed in the videotape.” Id., p. 18. The trial commissioner did not commit legal error by relying on this medical opinion.

Irrespective of the average number of leg movements per minute made by the two kick press operators who were visible in the short videotape, the trier was not required to accept that footage as strong proof of the claimant’s alleged repetitive trauma injury. He could easily have inferred that the individuals on the tape were working at a quicker and more diligent pace than normal. As noted in the findings, the claimant herself testified (albeit uncertainly) that she only made 100-200 movements per hour. Findings, ¶ 19, citing August 23, 1995 Transcript, p. 35. The commissioner could also have viewed the smooth, easy motions of those employees’ right legs as an indication that the ergonomics expert and Dr. Robinson correctly inferred that these machines placed insufficient stress on the claimant’s back to cause a disc herniation. Despite the claimant’s arguments, we cannot reverse that sort of an evidentiary determination on appeal. Webb, supra.

As these findings are reasonable, and support the instant decision, the trial commissioner’s dismissal of this claim is hereby affirmed.

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

1 Subsequent to oral argument in this case, the claimant filed a motion to recuse the Chairman from the review panel, citing “bad feeling” between claimant’s counsel and the Chairman which “could clearly lead to bias and prejudice” in this matter. The Chairman denied this motion on November 25, 1998. BACK TO TEXT

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