State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Avila v. Parcel Port

CASE NO. 4481 CRB-3-02-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 13, 2003

LUZ AVILA

CLAIMANT-APPELLEE

v.

PARCEL PORT

EMPLOYER

and

MASTERCARE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Joseph Gillis, Esq., Gillis & Gillis, Two Whitney Avenue, #502, New Haven, CT 06510.

The respondents were represented by Kristen Sotnik Falls, Esq., Letizia, Ambrose & Falls, P.C., One Church Street, New Haven, CT 06510.

This Petition for Review from the January 7, 2002 Finding and Award of the Commissioner acting for the Third District was heard August 23, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the January 7, 2002 Finding and Award of the Commissioner acting for the Third District. They contend on appeal that the trier erred by finding that the claimant’s compensable right wrist and elbow conditions were due to a specific injury rather than to repetitive trauma, and by leaving open a period of possible total disability that had been raised at the formal hearing. We find error, and remand this case for articulation regarding the nature of the injury and the disability period.

The claimant became an employee of the respondent Parcel Port on May 14, 2000, after having worked there for several months as a temporary employee under the auspices of an employment agency. Her primary duty was to pack household items into boxes, some of which were heavy. On July 5, 2000, she was engaged in that task when she heard a noise in her right wrist. She completed her workday, but the joint began to swell later that evening. A few days afterward, she began to develop pain in that wrist, and reported the injury to her supervisor on July 12, 2000, whereupon she was sent to the emergency room. X-rays were negative, but Dr. Thomson felt that the claimant had tendonitis involving the right wrist and lateral epicondyle. The doctor was of the opinion that her condition was probably due to her work, which involved heavy repetitive motion.

The claimant was released for light duty work as of July 17, 2000, which Parcel Port provided. She returned to Dr. Thomson on August 11, 2000 with complaints of elbow and wrist pain, and added a complaint of numbness in the fingers of her right hand on September 6, 2000. Dr. Thomson diagnosed lateral epicondylitis, tendonitis and carpal tunnel syndrome, which he indicated were related to her employment. Surgery was recommended. Dr. Brown, an orthopedic surgeon, examined the claimant at the respondents’ request, and opined that the claimant’s carpal tunnel syndrome and lateral epicondylitis were the product of cumulative trauma, with the major cause being the 14 years of repetitive-type work that the claimant had done for various employers prior to her brief stint at Parcel Port.

At trial, the claimant sought a finding of compensability for her right wrist and elbow, authorization for surgery, and temporary total disability benefits from September 6, 2000 through June 2001. The trier found that her wrist and elbow conditions were causally related to the repetitive work that she performed at Parcel Port, and authorized the surgery recommended by Dr. Thomson. As for temporary total disability, the trier found that she was entitled to benefits from September 6, 2000 through November 29, 20001, when the claimant sustained a non-work related left arm injury after falling down the stairs at her home. He then stated, “[B]enefits for temporary total disability after November 29, 2000 will have to be the subject of additional medical opinions by Dr. Thomson.” Award, ¶ L. The respondents have filed an appeal from that decision.

The first issue raised by the respondents on appeal is their allegation that the trier erred by failing to specify that the claimant’s injury was due to repetitive trauma that she had sustained over a period of 14 years, at several different jobs. We do find error, inasmuch as the findings contain inconsistencies that are not resolved by the trier’s conclusions. Early on, the trier finds that, while packing boxes on July 5, 2000, the claimant heard a noise in her right wrist, which became painful a few days later. Findings, ¶¶ 10-12. Later, he includes the findings that Dr. Thomson believed the claimant’s wrist and elbow conditions to be work-related; ¶¶ 29, 35; while Dr. Brown attributed those conditions to cumulative trauma, primarily due to the work she did for many years prior to her time at Parcel Port. Findings, ¶ 37. In his conclusions, the trier agrees that the claimant’s condition is related to “heavy repetitive motion work;” ¶ H; and describes her ailment as being “related to the repetitive work she performed at Parcel Port.” Findings, ¶ J. He closes by stating, “It is found that the claimant sustained work related right wrist and elbow injuries on July 5, 2000 while employed by Parcel Port.”

Read in the context of our law, these findings inherently conflict. Some suggest an accidental injury date of July 5, 2000, some attribute the injury to repetitive motion work at Parcel Port, and one finding relates the opinion of a doctor who attributes the hand and wrist conditions to cumulative trauma extending throughout the claimant’s prior years of employment. The compensability of the injury and the employer’s duty to administer this claim are clearly established by the Finding and Award. However, we are unable to tell if the period of culpable repetitive trauma spans the time frame when the claimant was working at Parcel Port while affiliated with a temporary employment agency, or if it also includes trauma suffered during the many physically arduous jobs that the claimant held prior to her employment at Parcel Port. Such matters may be relevant in terms of apportioning liability pursuant to § 31-299b C.G.S. Where a set of findings and conclusions contains material inconsistencies, the optimal remedy is to remand the matter for clarification by the trial commissioner. Ortiz v. Highland Sanitation, 4439 CRB-4-01-9 (Nov. 12, 2002). That is the approach we must take here.

The respondents also contend that the commissioner’s award of total disability benefits incorrectly left open the question of possible entitlement to benefits from November 23, 2000 through the formal hearing date of June 27, 2001. Again, we find merit in this allegation of error. The claimant’s attorney stated on the record that his client was claiming total disability from September 6, 2000 through June 30, 2001. June 27, 2001 Transcript, p. 2. Dr. Thomson’s reports do not directly address the issue of total disability, however, and it is difficult to gauge the role that the claimant’s compensable right elbow and wrist injuries might play in any work incapacity beyond November 23, 2000, as opposed to her left upper extremity problems. Claimant’s Exhibit A. The left side injury was serious enough that Dr. Thomson postponed the right side surgery for more than two months until the claimant’s other symptoms could resolve themselves.

Presumably because he thought there was insufficient evidence to make a determination on total disability after November 23, 2000, the trier held that total disability after that date would have to be the subject of additional medical opinions by Dr. Thomson. However, the record indicates that the parties expected an adjudication of the total disability issue through the date of the formal hearing. Compare Brown v. State/Dept. of Mental Health and Addiction, 4053 CRB-2-99-5 (July 27, 2000)(transcript implied that both the commissioner and the parties sought adjudication of total disability issue only through date of Form 36 filing, rather than date of formal hearing), aff’d, 66 Conn. App. 882 (2001) (per curiam), cert. denied, 259 Conn. 913 (2002). Neither party requested a continuance to offer further evidence on the disability issue. Absent a specific agreement or request to leave this issue open, the trial commissioner cannot absolve the claimant of his duty to offer sufficient evidence to establish the disability claimed. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); D’Amico v. State/Dept. of Correction, 4287 CRB-5-00-9 (Aug. 3, 2001), aff’d, 73 Conn. App. 718 (2002), cert. denied, 262 Conn. 93 (2003). Leaving the matter up to further reports by Dr. Thomson does not properly resolve this issue, as in doing so, the trier would in effect be delegating to the doctor his duty to arbitrate the credibility of the evidence. Thus, on remand we instruct the commissioner to resolve the issue of disability from November 23, 2000 through the date of the formal hearing, based upon the record before him.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.

1 The date used in ¶ L of the trier’s conclusions is November 29, 2000. However, ¶ 33 of the trier’s factual findings sets the date of the left arm injury as November 23, 2000, which the evidence and the parties’ briefs all seem to corroborate. It is possible that the commissioner pulled “November 29, 2000” from the date of a report by Dr. Thomson that explained the claimant had fallen six days earlier, on the 23rd. An opportunity to correct this error will arise upon remand, as discussed below. BACK TO TEXT

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