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Goldberg v. Ames Department Stores

CASE NO. 4160 CRB-01-99-02

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 19, 2000

TATYANA GOLDBERG a/k/a TANYA GOLDBERG

CLAIMANT-APPELLEE

v.

AMES DEPARTMENT STORES

EMPLOYER

and

GALLAGHER BASSETT SERVICES

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Seymour A. Rothenberg, Esq., Rothenberg Law Offices, 239 Silas Deane Highway, P. O. Box 290767, Wethersfield, CT 06129-0767.

The respondent was represented by David Kelly, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the November 22, 1999 Finding and Award of the Commissioner acting for the First District was heard July 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the November 22, 1999 Finding and Award of the Commissioner acting for the First District. They contend on appeal that the trial commissioner erred by finding that the opinion of the claimant’s treating physician was credible, and by awarding benefits in accordance with his diagnosis. We affirm the trial commissioner’s decision.

The trier found that the claimant suffered injuries to her back and neck on December 20, 1996, while lifting a large box in the course of her employment. He accepted her testimony that she told several people at work, including two store managers, that she had gotten hurt and was in pain. The claimant saw Dr. Filippini on December 24, 1996, who found her to be totally disabled for the following two weeks. He later continued her disability for four additional weeks, and sent her for physical therapy. On January 14, 1997, the claimant attended an independent medical examination with Dr. Kruger. He agreed that she had neck and shoulder pains, but did not believe that she had a significant work-related injury. Evidence was also introduced that the claimant was involved in a motor vehicle accident on December 5, 1996.

The trial commissioner was not persuaded by Dr. Kruger’s opinion, and found that the claimant sustained no injuries in the December car accident. He accepted Dr. Filippini’s diagnosis of a 5% permanent partial impairment rating to the claimant’s cervical spine, and ordered the respondents to accept the compensability of the claimant’s injury and her resultant disability and permanency, which added up to 11.85 weeks of benefits en toto. He also instructed the respondents to pay $1575 in medical bills to Dr. Filippini and the physical therapy department of the Enfield Medical Center. The respondents have appealed that ruling, along with the denial of their Motion to Correct.

Whenever this board is asked to review a trial commissioner’s decision to credit the testimony of one witness over that of another, we must apply a very deferential standard in performing our inspection, because the quintessence of a trier’s factfinding prerogative is the power to determine the weight of the evidence presented and the credibility of the testimony offered by both lay and expert witnesses. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This board may disturb the factual findings of the trial commissioner only if they lack any support in the evidence, or if he has failed to include undisputed material facts. Palandro v. Bernie’s Audio-Video T.V. & Appliances, 3876 CRB-3-98-8 (Sept. 2, 1999). We may not retry a case on appeal and substitute our own findings for those of the trier. Id.

The commissioner ’s plenary factfinding authority provides him with a great deal of latitude in evaluating the evidence. He is not required to regard any particular statement as probative, even if it is apparently uncontradicted, nor is he required to deem any particular witness unpersuasive just because her remarks contain inconsistencies or uncorroborated assertions that tend to further her own interests. Gagliardi v. Raimondo Maintenance, L.L.C., 4012 CRB-1-99-4 (July 20, 2000); Pallotto, supra. Indeed, we have stated very directly that this board lacks the authority on review to declare a claimant’s testimony unreliable as a matter of law. VanStraten v. Hartford Courant, 3999 CRB-8-99-3 (March 23, 2000). The same principle applies to statements made by any witness, including an expert such as a doctor (although a medical diagnosis itself must be stated within a reasonable degree of probability; Struckman v. Burns, 205 Conn. 542, 555-56 (1987)). Where the veracity of a witness’ factual representations is at issue, the trial commissioner’s credibility assessment is virtually inviolable on appeal.

The respondents nonetheless contend that the instant case goes well beyond the typical “battle of the experts” due to irregularities in Dr. Filippini’s records and testimony that are so severe they preclude any reasonable reliance on his opinion. Indeed, that is how we must treat the respondents’ claim, for if their contention is that Dr. Kruger’s opinion should have been credited instead of Dr. Filippini’s opinion, we would be unable to grant relief. The trial commissioner specifically found Dr. Kruger’s evidence unpersuasive, and we have no power to overturn that assessment on appeal no matter what our decision is regarding Dr. Filippini’s records. See Pallotto, supra; see also, Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999)(function of factfinder is to reject or accept, in whole or in part, expert testimony). The most we could possibly do would be to declare the trier’s reliance on Dr. Filippini’s opinion to be erroneous based on the evidence, and remand the case for further findings.

The respondents raise many points in their brief, some of which we need not consider here. For instance, they propose that Dr. Filippini’s medical credentials are weak, and they attempt to malign his “judgment and patience” by citing snippets of his testimony that evince a bit of frustration on the doctor’s part. Respondents’ Brief, p. 7. Those alleged grounds for impeachment are irrelevant at this advanced stage of the proceedings; we cannot retroactively declare a witness’ testimony incompetent because he chose to use colorful language at trial. Similarly, the doctor’s refusal to comply with the respondents’ initial subpoena to attend the formal hearing has several possible connotations, which this board is in no position to choose among. If anyone were to draw inferences from that temporary boycott, it would have to be the trial commissioner. This board is in no position to assign significance to that aspect of the doctor’s conduct.

The only details truly amenable to reconsideration here on review are the facets of the record that the respondents label as “objective discrepancies” in their brief. The question we must ask is whether these alleged discrepancies are so unambiguous and salient that a rational person could not reasonably rely on the doctor’s testimony. To that end, the respondents would direct our attention to the following details. The claimant submitted into evidence a signed letter from Dr. Filippini to the claimant’s counsel dated December 24, 1996, which was essentially a medical report in which the doctor stated that the claimant had been “seen in his office today for orthopedic evaluation.” Claimant’s Exhibit E. She was complaining of severe discomfort in her dorsal and lumbar spines, which she said had developed while she was repeatedly lifting large packages at the layaway counter of an Ames department store over the course of the week ending on Friday, December 19, 1996. However, the respondents introduced a copy of Dr. Filippini’s typed office notes into the record. Respondents’ Exhibit 10. There are five separate entries in this list, the final one being dated December 24, 1996. It states that “Tanya apparently was involved in a MVA. She has a severe cervical whiplash injury. I expect that she will be disabled by it for quite some time.” The respondents argue that Dr. Filippini did nothing to clarify this conflict at his deposition, and in fact stated that he never treated the claimant for symptoms relating to a car accident. Respondents’ Exhibit 11, p. 23. They also note that Attorney Rothenberg, the addressee of Dr. Filippini’s letter, did not yet represent the claimant on December 24, 1996.

Although these facts taken together could provide a factfinder with a basis for doubting the accuracy of this doctor’s opinion, after examining the whole of the record, we do not agree that such an inference is legally required. We observe that, at Dr. Filippini’s deposition, he stated that neither his personal memory nor his office records contained any recollection that the claimant had told him about her December 5, 1996 motor vehicle accident. Id., 39. Contrary to the respondents’ implication in their brief, it does not appear that he was confronted with the December 24, 1996 office note that is present in Respondents’ Exhibit 10; instead, an alternate set of office notes is appended to the doctor’s deposition as Respondents’ Exhibit 1 for identification, with no entry for December 24, 1996. Neither party mentions the variation in these two sets of office notes, and we cannot automatically draw an inference against Dr. Filippini based on this unexplained discrepancy. As for the back-dated medical report, our records show that Attorney Rothenberg first appeared on the claimant’s behalf in February 1997. It appears the doctor prepared a medical report several months after the date of the claimant’s visit, and used that date as the date of the report. We do not detect clear and irrefutable traces of impropriety in this practice, either.

Moreover, Dr. Filippini’s records show that the claimant injured herself at work sometime on or shortly before October 31, 1995, with pain in her cervical and lumbar spines. She treated with the doctor for pain related to that injury during the course of the next year. She then complained of a new dorsal and lumbar spinal strain, based on the December 24, 1996 report. Thus, her later claim was consistent with a recent history of work-related pain in both her neck and back. The police department’s report of her temporally proximate motor vehicle accident does state that the claimant complained of neck pain following the traffic mishap, but it does not reflect any mention of lower or middle back pain. Claimant’s Exhibit H. The trier ultimately found that the claimant was not injured in the accident at all, as he was legally entitled to do. See Pallotto, supra (trier always entitled to disregard evidence, even if apparently uncontradicted).

As such, one could plausibly question whether the evidence here is truly in conflict. Certainly, there remains at least one reasonable explanation for these alleged irregularities that the commissioner could have assumed true in finding the claimant’s injury compensable. He was, of course, not required to state the reasons for his decision to credit Dr. Filippini’s report over that of Dr. Kruger. Admin. Reg. § 31-301-3; Perry v. Commercial Interior Systems, 3571 CRB-7-97-4 (June 3, 1998). On review, this board is required to interpret the trier’s findings with the goal of sustaining his conclusions in light of all the other supporting evidence. Six v. Thomas O’Connor & Co., 235 Conn. 790, 801 (1996). Therefore, we have no authority to reverse this decision on appeal, and must affirm the findings and conclusions of the trial commissioner. Webb, supra.

The trier’s decision is hereby affirmed. Insofar as any benefits due the claimant remain unpaid pending appeal, interest is awarded as required by § 31-301c(b) C.G.S.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

Workers’ Compensation Commission

Page last revised: January 4, 2005

Page URL: http://wcc.state.ct.us/crb/2000/4160crb.htm

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