State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Covert v. Richard Patterson

CASE NO. 4094 CRB-03-99-08

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 29, 2000

NANCY COVERT

CLAIMANT-APPELLANT

v.

RICHARD PATTERSON

EMPLOYER

and

HARTFORD ITT INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared before the board on her own behalf.

The respondents were represented by Frank Ancona, Esq., Edward M. Henfey & Associates, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

This Petition for Review from the July 20, 1999 Finding and Award of the Commissioner acting for the Third District was heard April 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the July 20, 1999 Finding and Award of the Commissioner acting for the Third District. In that decision, the trial commissioner determined that a Form 36 had properly been approved on April 30, 1998 based upon a medical report from a trial commissioner’s examiner which indicated that the claimant was able to return to work. In support of her appeal, the claimant contends that the trial commissioner erred in relying upon the opinion of Dr. Sella, who conducted the § 31-294f examination. The claimant has also submitted a Motion to Submit Additional Evidence.

The trial commissioner found that the claimant sustained a compensable injury when she fell on December 1, 1997 from the bottom stair of a stairway. She first sought medical attention ten days later with Dr. Manna, a chiropractor, who diagnosed low back pain and right sciatica. Dr. Manna treated the claimant ten times between December 10, 1997 and January 13, 1998, and released the claimant to light duty work, part-time. The respondent employer, however, would not allow the claimant to return to work until she was released to full duty. Dr. Manna referred the claimant to an orthopedist, and the claimant was examined by Dr. Goodman on January 29, 1998. (Finding ¶ 9-11; Claimant’s Exh. H). Dr. Goodman found minimal changes on the claimant’s lumbar and cervical X-rays, which revealed no abnormalities, and he diagnosed multiple contusions of the body and sprains of the spine. He did not find that the claimant needed further treatment, and opined that she could return to work as a legal secretary.

The claimant was referred to Dr. Lang, an internist, on February 23, 1998, and he disabled her since that time. Dr. Lang opined that the claimant had developed fibromyalgia and myofacial pain disorder as a result of her December 1, 1997 injury. He opined that the claimant was totally disabled throughout his treatment, most recently in a November 16, 1998 report.

A commissioner’s examination of the claimant was ordered on March 9, 1998 and was conducted on April 6, 1998 by Dr. Sella. Dr. Sella examined the claimant, and reviewed her symptoms, including two pages of her hand written complaints which included symptoms from the neck to the sacrum, the right foot and knee, dizziness, fatigue, loss of appetite, tingling and burning in the arm, legs, pelvis, chest, and hips. The claimant’s complaints were so extensive that he opined that they involved every part of her body. (Finding ¶ 23; Claimant’s Exh. V). Dr. Sella reviewed an extensive history of the claimant’s injury and her treatment, including the X-rays and the reports of Dr. Goodman and Dr. Lang, whose reports indicated a diagnosis of fibromyalgia and myofacial pain. Dr. Sella diagnosed a cervical thoracic and lumbar sprain. He found no objective neurological findings, and found that the claimant showed signs of symptom magnification. He advised her to return to work, as there was no permanent damage to any of her body parts.

Based upon Dr. Sella’s report, the respondents filed a notice to discontinue payments (Form 36) on April 30, 1998, which was granted by a trial commissioner effective April 30, 1998. The trial commissioner in the instant case held that the Form 36 had been properly granted effective April 30, 1998, and further held that any medical treatment rendered after that date was unreasonable and unnecessary. In support of her appeal, the claimant makes numerous contentions, but her appeal centers on the argument that the trial commissioner erroneously relied upon the report of Dr. Sella. Specifically, the claimant argues that because Dr. Sella was not specifically asked to comment upon the claimant’s alleged fibromyalgia and myofacial pain disorder, therefore his omission of this alleged disorder in his report should not be deemed to be an opinion that the claimant did not suffer from fibromyalgia and myofacial pain disorder. We find no error.

Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the trial commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the trial commissioner’s conclusion that the claimant was able to return to work and was no longer totally disabled effective April 30, 1998 was based upon the credibility of the evidence presented, and is amply supported by the findings of fact and by the evidence in the record. The trial commissioner’s decision is supported not only by the report issued by Dr. Sella, but also by the report issued by Dr. Goodman. A trial commissioner may certainly rely upon the opinion of the physician who conducted the § 31-294f medical examination of the claimant. Indeed, in Zito v. Stop & Shop, 3929 CRB-3-98-11 (Feb. 17, 2000), we recognized that “the parties generally expect that an examination performed at the direction of a trial commissioner pursuant to § 31-294f will provide the trier with strong guidance.” Id., citing Iannotti v. Amphenol/ Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995), aff’d., 40 Conn. App. 918 (1996)(per curiam).

In her appeal, the claimant repeatedly argues that Dr. Sella’s report was faulty because he was not asked by the trial commissioner to render an opinion regarding her alleged fibromyalgia and myofacial pain disorder. However, if the claimant believed that Dr. Sella had failed to review these alleged conditions,1 she could have deposed Dr. Sella or presented him to testify at the formal hearing. It was not, as argued by the claimant in her appeal, incumbent upon the trial commissioner to seek clarification of this issue. Rather, the trial commissioner, as the trier of fact, had the discretion to credit all, part, or none of Dr. Sella’s opinion. See Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999).

Indeed, we disagree with the claimant’s arguments regarding Dr. Sella’s report being inherently unreliable because he was not asked to render an opinion regarding her alleged fibromyalgia and myofacial pain disorder. Rather, the findings of fact indicate that Dr. Sella completed a detailed examination of the claimant, and also reviewed the X-rays and the reports of Dr. Goodman and Dr. Lang, whose reports included a diagnosis of fibromyalgia and myofacial pain syndrome. (Finding ¶ 24). Dr. Sella observed the claimant as she underwent numerous tests, and noted that she experienced occasional jerking type movements of the whole body which he opined to be totally inappropriate. (Finding ¶ 25). Furthermore, Dr. Sella observed that the claimant showed signs of symptom magnification, and that there were no objective neurological findings. It was within the discretion of the trial commissioner to accept Dr. Sella’s opinion that the claimant had sustained a cervical thoracic and lumbar sprain and that the claimant was able to her to return to work, as there was no permanent damage to any of her body parts.

We will next address the claimant’s contention that it was improper for the trial commissioner to hold that the claimant’s medical treatment after April 30, 1998 was not reasonable or necessary medical treatment. We find no error. We have repeatedly held that the “determination of whether medical care is reasonable and necessary, including whether the medical care is palliative care or a curative remedy, is a factual issue to be decided by the trial commissioner.” Rodenbaugh v. F.R. Tetro Enterprises, 3823 CRB-5-98-5 (Aug. 18, 1999), quoting Cummings v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op. 225, 228, 2008 CRB-1-94-4 (April 12, 1995) (citing Burgos v. United Technologies, 12 Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 1994)). We note that the findings of fact address, in detail, the claimant’s medical treatment, and we conclude that the findings amply support the trial commissioner’s determination that treatment after April 30, 1998 was not medically reasonable or necessary.

In further support of her appeal, the claimant contends that it was error for the trial commissioner to deny in part her Motion to Correct, which was also granted in part. Essentially, the claimant is seeking to retry the facts of her case, which this board may not do. We have explained as follows:

It is axiomatic that the trial commissioner is the fact finder in any workers’ compensation case. His duty is to consider the testimony and exhibits in the record, assess their credibility, and draw inferences and legal conclusions that are based on his impressions. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Webb v. Pfizer, Inc., [supra]. This standard applies even where evidence appears to be uncontradicted. Pallotto, supra. When the trier reviews a Motion to Correct, he must evaluate the proposed changes in that same capacity. He is not required to grant corrections that would not affect the outcome of the case, and this board may not retry the matter or independently appraise the evidence underlying the proposed corrections on review. Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (Jan. 20, 2000), (emphasis added).

In the instant case, as the evidence in the record, including Dr. Sella’s report, amply supports the trial commissioner’s findings and conclusions, we may not disturb his decision. See Fair, supra.

Finally, we will address the claimant’s Motion to Submit Additional Evidence, in which the claimant seeks to present a Form 43 received by her on July 29, 1999; a Form 36 received by her on July 31, 1999; and a new voluntary agreement offered by the respondents and received by the claimant on February 24, 2000. All of these documents, as alleged in the claimant’s Motion to Submit Additional Evidence, were produced after the last formal hearing held on June 11, 1999. The claimant apparently objected to both the Form 43 and the Form 36, and thus was entitled to a hearing on those issues. Normally, where the parties are unable to settle issues during the informal hearing process, a formal hearing is held, and either party may appeal the trial commissioner’s decision to this board. At this time, these issues have not yet reached our jurisdiction, as there has been no appeal from a trial commissioner’s decision. Accordingly, we may not review them here.

The decision of the trial commissioner is affirmed.

Commissioners Amado J. Vargas and Leonard S. Paoletta concur.

1 We note that this issue was discussed during the formal hearing. See 11/2/98 TR. at p. 35-36; 3/25/99 TR. at p. 40-41. BACK TO TEXT

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