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Marcoux v. Allied Signal, Inc.

CASE NO. 4366 CRB-4-01-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 16, 2002

JAMES MARCOUX

CLAIMANT-APPELLANT

v.

ALLIED SIGNAL, INC.

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant, who appeared pro se in this matter, was not present at oral argument. The appeal was considered on the papers filed and the record before the trial commissioner.

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

This Petition for Review from the February 22, 2001 Finding of Denial of the Commissioner acting for the Fourth District was heard September 14, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the February 22, 2001 Finding of Denial of the Commissioner acting for the Fourth District. He contends in his appeal papers that the trier erred by not finding that his recent development of carpal tunnel syndrome was related to elbow problems that stemmed from a 1995 compensable injury. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant was employed by the respondent Allied Signal on July 21, 1995, when he sustained a right elbow injury in the course of his employment. The respondents accepted liability for that injury via a voluntary agreement that was approved on September 11, 1996. The claimant’s treating physician, Dr. Brittis, performed tendon release surgery on August 9, 1996,1 and diagnosed the claimant with a 5% permanent partial impairment of his right elbow as of June 6, 1997. The claimant accordingly received 10.4 weeks of benefits pursuant to § 31-308(b).

In April of 1998, Dr. Brittis examined the claimant for complaints of elbow pain, with tingling and numbness in some of his fingers. Two months later, he noted a progression in the symptoms, as more of the claimant’s fingers were numb. He thought there might be a neurological problem, but did not diagnose carpal tunnel syndrome. Dr. Brittis examined the claimant again on November 18, 1998, and identified symptoms of ulnar nerve compression. He saw the claimant in regard to these symptoms on February 16, 1999, and maintained the opinion that the claimant had not yet demonstrated carpal tunnel syndrome. That opinion changed as of May 13, 1999, when Dr. Brittis observed symptoms of ulnar neuritis as well as carpal tunnel. He referred the claimant to Dr. Backe, who concurred with his findings and recommended carpal tunnel release surgery on the claimant’s right hand.

The claimant ceased working for Allied Signal in 1997, and began new employment with Highfield Manufacturing in June 1998, where he performs machinist-type work, as well as paperwork. The respondents contend that the claimant’s carpal tunnel surgery is not related to his prior employment at Allied Signal. Dr. Brittis opined that the claimant’s work activities after June 1998 were a substantial contributing factor in his development of carpal tunnel syndrome. The trier apparently relied on this opinion in concluding that the claimant’s carpal tunnel syndrome was not causally related to his employment at Allied Signal, and in dismissing the instant claim. The claimant has appealed that decision to this board.

When someone makes a claim under the Workers’ Compensation Act, and the parties cannot resolve a portion of the claim by mutual agreement, a workers’ compensation commissioner often holds formal hearings to determine whether the claim has legal merit. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). The commissioner’s job at those hearings is to try the facts, as does a trial judge in Superior Court. Both parties are allowed to present medical evidence and testimony, and the commissioner must evaluate all of the evidence and decide which is the most believable. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). However, the parties do not start from a precisely equal position, because the claimant has the burden of proving that he has sustained a compensable injury, that he has a disability, or (as in this case) that his acknowledged disability was caused by an accepted compensable injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000). To illustrate the effect of this burden, if a trial commissioner chose to believe none of the witnesses in a given case, and found the rest of the evidence to be untrustworthy, the employer would essentially prevail by default. Warren, supra.

Frequently, the origin of a particular condition is unclear, and can only be established with the aid of expert medical testimony. Murchison, supra; Garofalo v. Jarvis Products Corp., 4249 CRB-8-00-6 (Sept. 12, 2001). With a condition such as carpal tunnel syndrome, which is generally the product of repetitive stress to the hands and lower arms, it would be difficult to prove that one’s need for surgery was related to a particular job without having a doctor confirm that connection. Here, the claimant needed to present medical evidence to the trier that would establish that his need for carpal tunnel release surgery was related to his employment at Allied Signal within a reasonable degree of medical probability. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449 (2001). However, the claimant could not completely control the trial commissioner’s response to that evidence, as the trier had the sole authority to decide whether to believe part, all or none of the doctor’s reports and testimony that the claimant offered into evidence. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).

According to Dr. Brittis’ testimony, the claimant was treated between 1995 and 1997 for lateral epicondylitis, an inflammation of muscle groups on the outside of the forearm. On August 9, 1996, he had surgery to release an extensor tendon at the level of the right elbow. Respondents’ Exhibit 1, p. 7 (Dep. of Dr. Brittis). As noted above, maximum medical improvement was assessed as of June 1997. On April 30, 1998, the claimant returned with symptoms at the elbow and in the hand. The doctor thought that the claimant might have a recurrent lateral epicondylitis, which is a tendon problem rather than a nerve problem. He also wondered about a possible radial nerve compression. When Dr. Brittis saw the claimant again in June, he noted that the claimant’s symptoms were no longer localized on the lateral (outer) side, but also on the medial (inner) side of the elbow, and that they seemed more neurological due to increased finger numbness. Id., 10. At the time, he did not think the claimant had carpal tunnel syndrome, based on a sensitivity test over the median nerve and a compression test of that nerve.

When he saw the claimant again in November, his patient had undergone EMG tests that suggested some element of carpal tunnel syndrome. However, Dr. Brittis’ physical examination suggested that the claimant had symptoms of ulnar nerve compression rather than carpal tunnel. He thought no other treatment was necessary besides observation. Id., 13. By the time of the claimant’s next visit in February 1999, he had improved, though he was having some numbness in his fourth and fifth fingers (the ring finger and pinky), which tend to be ulnar nerve symptoms, according to the doctor. Carpal tunnel syndrome involves compression of the median nerve at the level of the wrist. Id., 14; see also American Heritage Stedman’s Medical Dictionary, 2001 ed., defining “carpal tunnel syndrome” as “Chronic pain and paresthesia in the hand in the area of distribution of the median nerve, caused by compression of the median nerve by fibers of the flexor retinaculum,” which is a strong fibrous band that crosses the front of the wrist (carpus) and binds down the flexor tendons of the digits and the wrist’s radial flexor muscle. Dr. Brittis did not identify clinical symptoms of carpal tunnel until May 13, 1999, when the claimant had begun to show signs of median nerve compression along with his primary diagnosis of ulnar neuritis.

When Dr. Brittis was asked whether the claimant’s work activities at Highfield Manufacturing were a substantial contributing factor to his development of carpal tunnel symptoms, the doctor answered that they probably were. He thought that the first evidence of carpal tunnel, as far as he could tell from a review of the medical records, was an EMG performed in October 1998. The claimant began working for Highfield Manufacturing in June 1998, and had stopped working at Allied Signal as of November 1997. Dr. Brittis agreed that it was “safe to say that given the change in symptoms between October ’98 and May of 1999 that [the claimant] was doing something that was aggravating his carpal tunnel.” Exhibit 1, supra, p. 19. The trial commissioner clearly relied on this testimony in his factual findings, and rendered his decision accordingly.

The claimant then filed an appeal with this board. Our role in reviewing the decision of a trial commissioner does not allow us to retry the case by second-guessing a trier’s decision to credit or reject a particular report, or to draw inferences from an opinion that are reasonable given the doctor’s explanation of a claimant’s symptoms. Warren, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). When we review the findings of a trial commissioner, we may alter them only if they contain facts found without any supporting evidence at all, or if the findings omit facts that are truly undisputed. Barton v. Waterbury Co., 3786 CRB-5-98-3 (June 3, 1999). Our job is to ensure that the commissioner correctly applied the law to the facts of the case; thus, an appeal to the CRB is not the equivalent of a “second chance” to prove one’s case, but rather a means of obtaining review in the event of legal error.

Also, if a claimant wishes a trial commissioner to reconsider his factual findings based on the impressions he has drawn from the evidence, he must file a Motion to Correct those findings with the commissioner as per Admin. Reg. § 31-301-4. Such a motion enables the claimant to call attention to evidence that he believes the trier might have overlooked or misinterpreted. Because we cannot substitute our own judgment regarding factual issues for that of the trial commissioner, we are limited in our ability to scrutinize the facts found as part of our review when a Motion to Correct has not been filed. Kelley v. Venezia Transport Services, 4184 CRB-2-00-2 (March 8, 2001); Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998). The claimant did not file such a motion in this case.

We see from the claimant’s brief that Dr. Brittis’ requested that he undergo an EMG examination to look for “occult ulnar nerve dysfunction” (as opposed to carpal tunnel or medial nerve compression) ten days before the claimant started work at Highfield Manufacturing. Claimant’s Exhibit A. The claimant contends that delays caused by the insurance company prevented that examination from being conducted until October 21, 1998. We do not believe that this delay played a significant role in the trier’s decision. The claimant should note that, according to Dr. Brittis, he did not exhibit clinical symptoms of carpal tunnel syndrome at the time of the EMG, even if the test results themselves pointed to carpal tunnel. Clinical symptoms did not begin exhibiting themselves until 1999. There is no reason to believe that if the EMG had been conducted four months earlier, prior to the claimant’s hiring at Highfield Manufacturing, it would have shown those same carpal tunnel symptoms. Instead, it seems that the claimant’s work at Highfield Manufacturing was the catalyst that brought forth significant median nerve compression and symptoms of carpal tunnel. As the contents of Dr. Brittis’ deposition are consistent with his medical reports, and the trier’s factual findings are supported by Dr. Brittis’ testimony, we find no error here.

The trial commissioner’s decision is hereby affirmed.

Commissioners Ernie R. Walker and Amado J. Vargas concur.

1 The Finding and Denial lists the date as August 9, 1995 in ¶ 6. However, Dr. Brittis testified that the surgery occurred on August 9, 1996, and there is no evidence otherwise. Respondents’ Exhibit 1, p. 7. BACK TO TEXT

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