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Brinson v. Finlay Brothers Printing Co.

CASE NO. 4307 CRB-1-00-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 1, 2001

CARL BRINSON

CLAIMANT-APPELLEE

v.

FINLAY BROTHERS PRINTING CO.

EMPLOYER

and

ATLANTIC MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Leonard Bren, Esq., Glass, Lebovitz, Kasheta & Bren, 2049 Silas Deane Highway, P.O. Box 129, Rocky Hill, CT 06067-0129.

The respondents were represented by Dominick Statile, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the October 11, 2000 Finding and Award of the Commissioner acting for the First District was heard June 22, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the October 11, 2000 Finding and Award of the Commissioner acting for the First District. In that decision, the trial commissioner found that the claimant’s fibromyalgia arose out of and in the course of his employment, and that said condition restricted his work capacity to four hours per day. In support of their appeal, the respondents contend that the claimant failed to demonstrate with reasonable medical probability that his condition was caused by his employment. Additionally, the respondents contend that it was error for the trial commissioner to award temporary partial benefits beyond the date of the last formal hearing. We find no error.

The trial commissioner found the following relevant facts. On September 24, 1996, the claimant reported work-related injuries involving his neck and low back with an onset of symptoms commencing September 18, 1996. These injuries were not the result of a single traumatic event, but were an accumulation of neck and back problems from work activities caused by bending over a work table doing very tedious work with film in the printing business. The injuries reported on September 24, 1996 were accepted as compensable by the respondents. The claimant treated with Dr. Barber, who returned him to work on February 10, 1997 on a part-time basis (four hours per day). On April 1, 1997, an independent medical examination was performed at the respondents’ request by Dr. Selden, who opined that the claimant was able to return to full-time employment. Based on Dr. Selden’s report, the respondents’ Form 36 filed on April 25, 1997 was approved by a trial commissioner on July 9, 1997.

On July 2, 1997, the claimant was examined by Dr. Kime, an orthopedic surgeon, who opined that the claimant had either fibromyalgia or some other reactive disorder as the etiology of his unusual pain syndrome. The claimant was referred to Dr. Krompinger for a second opinion, who examined the claimant on four occasions during September-November of 1997. He opined that the claimant’s pain condition was more consistent with a diffused arthritic process with an element of fibromyalgia. Subsequently, Dr. Krompinger again examined the claimant on March 26, 1999, and opined that the claimant had a symptomatic cervical spondylosis with an underlying element of fibromyalgia, and had a work capacity of four hours per day.

The claimant was examined by Dr. Stocker, a board-certified internist and rheumatologist, who diagnosed the claimant’s neck and back pain as fibromyalgia. Dr. Stocker opined that the claimant’s work activities were a significant factor in the causation of the fibromyalgia given his work description. Finding, ¶ 12. He also indicated that the continued neck and shoulder pain restricted the claimant to a four hour work day. The trial commissioner accepted Dr. Stocker’s opinion, and concluded that the claimant’s fibromyalgia condition was caused by his employment. In support of their appeal, the respondents argue that causation was not established with the required degree of medical probability.

The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999); McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted). The trial commissioner’s conclusion is entitled to the same deference as that of a trial judge or a jury on the issue of proximate cause. Rogers v. Laidlaw Transit, 45 Conn. App. 204, 206 (1997).

In the instant case, the trial commissioner’s conclusion that the claimant’s condition was caused by his work duties is fully supported by the record. Specifically, Dr. Stocker testified in his deposition that the claimant’s work duties were a substantial cause of his fibromyalgia based upon reasonable medical probability. Claimant’s Exh. I, March 3, 1999 Deposition at pp. 29-30. Dr. Stocker’s medical opinion fully supports the trial commissioner’s conclusion that the claimant sustained fibromyalgia as a result of his employment, and thus this conclusion may not be disturbed. Ferrara, supra.

In further support of their appeal, the respondents contend that the requested changes in their Motion to Correct involved undisputed and material facts, and thus the trial commissioner erred in denying said motion. Specifically, the respondents contend that the trial commissioner failed to make findings involving the opinions of Dr. Kime and Dr. Krompinger regarding the causation of the claimant’s condition. Additionally, the respondents requested that a finding be made that Dr. Stocker admitted that there was no conclusively proven cause for fibromyalgia. We find no error. As explained above, Dr. Stocker’s opinion fully supports the trial commissioner’s conclusion with the requisite degree of medical probability.

As it is the sole province of the trial commissioner to determine the weight of the evidence, we have repeatedly held that he may choose to believe “some, all or none” of the testimony of a witness. Student v. Corometrics Medical Systems, Inc., 3980 CRB-8-99-2 (Feb. 9, 2000) (citations omitted). Moreover, “[w]here a party’s requested corrections pertain to the credibility of the witnesses, the trial commissioner is not required to grant those corrections.” Cartier v. National Graphics, Inc., 4115 CRB-3-99-8 (Feb. 21, 2001), citing Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 627 (1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). As the medical evidence amply supports the trial commissioner’s conclusion that the claimant sustained a compensable injury, we find no error in the denial of the Motion to Correct. See Fusco v. J.C. Penney Company, 1952 CRB-4-94-1 (March 20, 1997) (a Motion To Correct may be denied where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings).

Next, we will consider the respondents’ argument that it was error to reverse the approval of the Form 36, as the trial commissioner who granted that motion had the discretion to grant it based upon the medical evidence available at that time. To the contrary, at a formal hearing, the trial commissioner may review the approval or denial of a Form 36 which was made at an informal hearing, and must make his determination based upon the evidence presented at the formal hearing. Anguish v. TLM, Inc., 3437 CRB-7-96-9 (Jan. 20, 1998), aff’d, 53 Conn. App. 241 (1999)(per curiam), cert. denied, 250 Conn. 910 (1999)(Dissenting Opinion). We have repeatedly explained that after the approval of a Form 36 at an informal hearing, a claimant has the “opportunity to present evidence and testimony at a formal hearing which normally would be held shortly after the Form 36 was approved.” Id. In the instant case, we note that there appears to be a long period of time between the approval date of the Form 36 and the formal hearing. However, the cause of this delay is unclear and has not been briefed by either party, and indeed the parties at oral argument before this board were unsure of the timing regarding when the formal hearing had been requested. We thus take this opportunity to reiterate that when a ruling is made on a Form 36, the party who disagrees with said ruling should request a formal hearing as soon as possible.

Finally, we will address the respondents’ argument that the trier erred in awarding ongoing temporary partial disability benefits under § 31-308(a), citing Cummings v. Twin Tool Manufacturing Company, Inc., 40 Conn. App. 36 (1996). We disagree. We explained in Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998) as follows:

In Morris v. A & A Acoustics, 3429 CRB-7-96-9 (decided Aug. 8, 1997) we concluded that the Appellate Court’s decision in Cummings, supra, did not take away the discretion of a trial commissioner to award continuing temporary total disability benefits, which discretion has long been utilized by trial commissioners in Connecticut. Specifically, in Morris we explained that our Supreme Court has repeatedly recognized that the trial commissioner has the discretion to award ongoing benefits for temporary total disability beyond the date of the last evidentiary hearing. Morris, supra, citing Morisi v. Ansonia Mfg. Co., 108 Conn. 31 (1928); Reilley v. Carroll, 110 Conn. 282 (1929); English v. Manchester, 175 Conn. 392 (1978).
Furthermore, the review board explained that the “law requires that the employer will be monitoring the status of the case concerning the employee’s incapacity status, and it is presumed that the employer would know when the employee will be returning to work.” Morris, supra, citing Platt v. UTC/Pratt & Whitney Aircraft Division, 3 Conn. Workers’ Comp. Rev. Op. 3, 9, 164 CRD-6-82 (Aug. 16, 1985). At that point, it becomes incumbent upon the respondent to file a Form 36. Indeed, attending physicians in workers’ compensation cases have an ongoing obligation to assess the claimant’s ability to return to work and to report such information to the employer or its insurer. Platt, supra, at 9, fn. 8, citing § 31-279-9. This practice clearly supports the humanitarian purpose of the Workers’ Compensation Act by allowing trial commissioners to award ongoing benefits where the medical evidence indicates that a claimant will continue to be temporarily totally disabled after the close of the last evidentiary hearing.
Hidvegi, supra.

Our reasoning in Hidvegi, supra, and Morris, supra, is applicable in the instant case, and thus we find no error in the trial commissioner’s award.

The trial commissioner’s decision is affirmed. If any of the benefits due the claimant remain unpaid, an award of interest is mandated by § 31-301c(b).

Commissioners George A. Waldron and Ernie R. Walker concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

Page URL: http://wcc.state.ct.us/crb/2001/4307crb.htm

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