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Norwood v. Custom Design Services, Inc.

CASE NO. 3844 CRB-07-98-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 2, 1999

JUDITH NORWOOD

CLAIMANT-APPELLANT

v.

CUSTOM DESIGN SERVICES, INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Eric N. Wellman, Esq., Jones, Damia, Kaufman, Wellman, Borofsky, Stelljes & DePaul, 301 Main Street, P.O. Box 157, Danbury, CT 06813-0157.

The respondents were represented by James Sullivan, Esq. and Maureen Driscoll, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.

This Petition for Review from the June 16, 1998 Finding and Award of the Commissioner acting for the Seventh District was heard February 26, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 16, 1998 Finding and Award of the Commissioner acting for the Seventh District. In that decision the trial commissioner found that on October 25, 1995, the claimant sustained a compensable injury to her left shoulder. In support of her appeal, the claimant argues that the trial commissioner erred by admitting the deposition of Dr. Saunders because during the deposition Dr. Saunders was asked about a videotape which he could not recall having viewed and which was not available during the deposition.

The trial commissioner found the following relevant facts. The claimant underwent an extensive surgical procedure to her left shoulder and neck area in July of 1994 which was not work related. This surgery caused her to be out of work from July 13, 1994 through September 6, 1994. The claimant continued to work until June 5, 1995 at which time she stopped working for three weeks in order to undergo physical therapy of her left upper extremity and neck due to the 1994 surgery. On October 25, 1995, during her employment the claimant performed taping of circuit boards for approximately two and one-half hours and began feeling pain. Immediately thereafter the claimant treated with Dr. Aaronson who subsequently referred her to Dr. Cohen. Dr. Cohen opined that the claimant’s job of taping for two and one-half hours on October 25, 1995 was the proximate cause of her shoulder girdle strain.

Dr. Saunders performed an independent medical examination of the claimant on December 14, 1995 at the request of the respondents, and diagnosed mild tendonitis or impingement of the left shoulder. Subsequently, Dr. Saunders viewed a videotape of another employee performing the taping work which allegedly caused the claimant’s injury. He concluded that the taping work, as depicted on the video, would not have caused the claimant’s shoulder injury. In his report of December 14, 1995, Dr. Saunders opined that the claimant could return to work, full duty, within approximately two to four weeks following the December 14, 1995 examination. Dr. Saunders further opined that the trigger point injection therapy being received by the claimant was not benefiting the claimant in any way. The trial commissioner awarded the claimant temporary partial disability benefits for the period when she returned to work part-time following the injury through May 9, 1996.

On appeal, the claimant contends that it was error for the trial commissioner to allow into evidence the deposition of Dr. Saunders. Specifically, the claimant alleges that Dr. Saunders’ testimony was flawed because during his deposition he could not recall having viewed the videotape and it was not available for viewing during the deposition. Additionally, the claimant argues that the videotape inaccurately portrayed the claimant’s job duty of taping, and thus the tape itself should not have been admitted into evidence. We find no error.

Section 31-298 C.G.S. specifically states that a trier is not bound by the ordinary common-law or statutory rules of evidence, but instead shall make inquiry in a manner best calculated to ascertain the substantial rights of the parties and carry out the intent of the Workers’ Compensation Act. Within these powers lies a broad discretion to determine the relevancy and remoteness of evidence. Swaggerty v. Mattie’s Service Station, 3378 CRB-6-96-7 (February 3, 1998); Mulroy v. Becton Dickinson, 15 Conn. Workers’ Comp. Rev. Op. 455, 458, 2295 CRB-8-95-2 (Sept. 6, 1996), aff’d., 48 Conn. App. 774 (1998).

In the instant case, the videotape was entered as an exhibit and viewed during the formal hearing. The trial commissioner considered the testimony of the claimant regarding said videotape, specifically her testimony that it did not accurately reflect the taping work which she performed on October 25, 1995. The trial commissioner considered the deposition testimony of Dr. Saunders, including his testimony that he did not recall viewing the videotape. It was within the discretion of the trial commissioner to admit said videotape, and to consider the weight to be accorded said evidence. Similarly, it was within the discretion of the trial commissioner to admit the deposition, and to consider the weight to be accorded Dr. Saunders’ testimony. Indeed, the trial commissioner chose not to rely upon Dr. Saunders’ opinion regarding causation of the claimant’s injury or his opinion that the claimant would be able to return to full duty work within approximately two to four weeks following the December 14, 1995 examination.

In further support of her appeal, the claimant contends that the trial commissioner improperly “clos[ed] off the period of maximum medical improvement at Dec. 14, 1995” and “froze the time frame for an evaluation of permanent partial disability to the December 14, 1995 time frame….” (Claimant’s Brief at 13). In fact, the trial commissioner in the instant case did not address the issue of a permanent partial disability and did not make a finding regarding the claimant’s date of maximum medical improvement. Rather, the trial commissioner found that Dr. Saunders opined in his report of December 14, 1995 that the claimant derived “no benefit whatsoever from the trigger point injections” and thus that the respondents were not responsible for payment of treatment after that date. (Finding ¶ 27 and ¶ C).

The determination of whether medical treatment is reasonable or necessary is a factual determination for the trial commissioner. Burgos v. United Technologies, 12 Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 1994). This board may not disturb such a factual determination where, as here, it is supported by the findings and the record. Six v. Thomas O’Connor & Co., 235 Conn. 790, 801 (1996); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: April 8, 2005

Page URL: http://wcc.state.ct.us/crb/1999/3844crb.htm

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