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Stankiewicz v. Rockville Memorial Nursing Home

CASE NO. 3959 CRB-02-99-01

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 28, 2000

LORETTA STANKIEWICZ

CLAIMANT-APPELLANT

v.

ROCKVILLE MEMORIAL NURSING HOME

EMPLOYER

and

EBI COMPANIES

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Christopher Foley, Esq., 3000 Whitney Avenue, Suite 103, Hamden, CT 06518-2353.

The respondents were represented by Jonathan Zajak, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The Second Injury Fund was not represented at oral argument. Notice sent to Yinxia Long, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 6, 1999 Finding and Award of the Commissioner acting for the Second District was heard August 6, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman Jesse M. Frankl and Commissioners Stephen B. Delaney and Amado J. Vargas.

OPINION

JESSE M. FRANKL, COMMISSIONER. The claimant has petitioned for review from the January 6, 1999 Finding and Award of the Commissioner acting for the Second District. She contends on appeal that the trier abused her discretion by dismissing the claimant’s request for compensation for several additional injuries that arose from an accepted back injury claim. We affirm the trial commissioner’s decision.

The parties to this action all agree that the claimant suffered a compensable injury to her lumbar spine on September 17, 1992, while working at the respondent Rockville Memorial Nursing Home. This resulted in a 20% permanent partial disability. The claimant now alleges that she also injured her left shoulder, right wrist, and cervical spine on the above date, which the respondents dispute. The Form 30C filed by the claimant’s counsel in October 1992 does not mention a left shoulder or right wrist injury.

The trier found that the claimant initially treated with an orthopedist, Dr. Filippini, whose reports made no mention of a shoulder or wrist injury during the two and one-half months that he provided her with care. Findings, ¶ 10. The claimant then had a falling-out with Dr. Filippini, and commenced treating with Dr. Mazzara through July 6, 1993, when a similar patient-doctor rift led to the termination of his care as well.1 Dr. Mazzara repeatedly noted “Waddell signs” of inappropriate illness behavior and symptom magnification, as well as inconsistencies in the claimant’s history and examinations. Findings, ¶¶ 14-21. He documented no left shoulder complaints until January 26, 1993, and no right wrist complaints until March 2, 1993.

The claimant eventually treated for her wrist complaints with Drs. Kelly and Conway beginning in 1993. Dr. Druckemiller, who performed a spinal fusion and referred the claimant to those doctors, had observed in his report that the claimant suffered from several preexisting conditions, including significant degenerative changes in her cervical spine. Claimant’s Exhibit I. The claimant received no treatment from July 1995 through February 1997, whereupon she returned to Dr. Mazzara so that he could review her chart and form an opinion as to whether there was a causal connection between her 1992 workplace injury and her persisting complaints of shoulder and wrist pain. Findings, ¶¶ 29-30, citing Claimant’s Exhibit H. He offered a lukewarm, qualified evaluation, stating a bit hesitantly that “to the best of [his] recollection” and “assuming the history as provided to [him] by the patient is entirely correct,” the claimant’s complaints were consistent with the mechanism of the described injury. Id.

Though Drs. Druckemiller and Kelly both related the claimant’s shoulder and wrist problems to her 1992 injury, the trier found that their opinions were based solely on the claimant’s history. Findings, ¶ 38. She also noted that one of Dr. Kelly’s earlier reports did not support the claimant’s case. The respondent’s medical examiner, meanwhile, found no connection between these complaints and the compensable injury. Respondent’s Exhibit 3. Having noted several discrepancies between the claimant’s testimony and the tangible evidence produced in the case, as well as inconsistencies in her own remarks; Findings, ¶¶ 31-37; the trier opined that the claimant was “a poor witness, frequently argumentative and not credible.” She concluded that the claimant had failed to meet her burden of proving that her cervical, wrist and shoulder conditions were related to the accepted injury of September 17, 1992, and dismissed the instant claim. The claimant has appealed that decision to this board, along with the denial of her Motion to Correct.

A trial commissioner’s quintessential function is her fact-finding authority, which entitles her to accept or reject evidence and testimony based upon her own assessment of its credibility. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This authority also entitles her to accept only portions of a witness’ testimony, or to disregard statements that appear to be uncontradicted by other tangible evidence. Id. Once the trier makes a decision regarding the veracity and reliability of the evidence presented, it must stand. An appellate body such as this board is not empowered to reevaluate the evidence on review, and draw its own conclusions. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). We may disturb the trier’s findings only if they are completely unsupported by the evidence, or if they fail to include undisputed material facts. Id.; see also, O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999).

Here, the trier was unpersuaded that there was a probable relationship between the claimant’s wrist, shoulder and neck complaints and her compensable injury of September 17, 1992. Her skepticism appears to be rooted in her assessment of the claimant’s demeanor. The record contains several examples of unclear statements by the claimant that were interpreted as inconsistencies by the commissioner. Findings, ¶¶ 31-37; see also April 27, 1998 Transcript; August 5, 1998 Transcript, 42-60. The trier also questioned the accuracy of the history provided by the claimant to those physicians whose reports tended to establish a causal connection between the claimant’s claimed symptoms and her compensable injury. Findings, ¶¶ 38-42.

Not only is the trier free to disregard medical reports if she believes that their diagnoses are based upon incorrect information, but there are various reports in this case that, pieced together, discount the causal connection between each of the claimant’s physical complaints and her compensable 1992 injury. The trier was free to choose among these conflicting medical opinions. Tartaglino, supra, 195-96; Rivera v. New Britain, 3501 CRB-6-96-12 (April 28, 1998). Given that discretion, and the authority of the commissioner to deem a claimant’s testimony suspect, thus casting doubt upon the entire case; see Ubaldo v. Cold Metal Products3223 CRB-6-95-11 (April 25, 1997); we cannot say on review that the trier committed reversible error in her decision.

Accordingly, the trial commissioner’s decision must be affirmed.

Commissioners Stephen B. Delaney and Amado J. Vargas concur.

1 The claimant testified that she lost confidence in both of these physicians because they failed to treat all of her complaints, and also suggested that Dr. Mazzara was verbally abusive to her during the July 6, 1993 office visit. See August 5, 1998 Transcript, p. 11. The intimation of abuse was in response to language in Dr. Mazzara’s report reflecting that the claimant’s “significant other” was present at her appointment, where he became “quite distressed and abusive during the exam.” Id., 10-11, citing Claimant’s Exhibit A. BACK TO TEXT

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