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Caldwell v. Shaw’s Supermarkets, Inc. et al.

CASE NO. 4493 CRB-3-02-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 13, 2003

RUTH CALDWELL

CLAIMANT-APPELLEE

v.

SHAW’S SUPERMARKETS, INC.

EMPLOYER

RESPONDENT-APPELLANT

and

SEDGWICK CLAIMS MGT. SERVICES

ADMINISTRATOR

and

TEMCO SERVICE INDUSTRIES

EMPLOYER

and

ONEBEACON INSURANCE CO. f/k/a PENNSYLVANIA GENERAL INS. CO.

INSURER

RESPONDENTS-APPELLEES

and

HEALTHCARE SERVICES/WEST ROCK HEALTH CARE FACILITY

EMPLOYER

and

ZURICH US

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

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

The respondent Shaw’s Supermarkets, Inc. was represented by Melissa B. Convertito, Esq., Letizia, Ambrose & Falls, One Church Street, New Haven, CT 06510.

The respondents Temco Service Industries and Pennsylvania General Insurance Company were represented by Jane M. Carlozzi, Esq., Nuzzo & Roberts, L.L.C., One Town Center, P.O. Box 747, Cheshire, CT 06410.

The respondents Healthcare Services/West Rock Health Care Facility and Zurich US were not represented at oral argument and did not file a brief before the board. Notice sent to Brian Smith, Esq., D’Attelo & Shields, 500 Enterprise Drive, Rocky Hill, CT 06067.

This Petition for Review from the February 8, 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. /p>

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, Shaw’s Supermarkets, Inc. appealed from the February 8, 2002 Finding and Award of the Commissioner acting for the Third District. In that Finding and Award, the trial commissioner concluded the personal injury sustained by the claimant in the form of a bilateral trigger thumb condition was compensable under our Workers’ Compensation Act. The commissioner also concluded that the claimant’s condition was to be apportioned pursuant to § 31-299b. Apportionment was assigned as 90% to her employment with the respondent Shaw’s and 10% to her employment with the respondent Temco.

The pertinent facts are as follows. The claimant was employed by the respondent, Shaw’s Supermarkets between July 4, 1998 and May 29, 1999. Prior to her employment with Shaw’s, the claimant worked for West Rock Health Care. While employed by West Rock Health Care the claimant developed bilateral carpal tunnel syndrome. That condition was accepted by her previous employer, West Rock Health Care. See February 22, 2001 Transcript, p. 13.

Following her employment with West Rock Health Care, the claimant went to work for the respondent, Shaw’s Supermarkets. Initially, her employment was part-time. In December 1998 she went to full time employment. Her work duties required her to work primarily in the floral department and also in the seafood department.

The claimant testified that her work in the floral department required her to use a stem cutting machine. She further testified that using the stem cutting machine caused her thumbs to hurt and that she would “alternate” between her right and left hands in order to operate the stem cutter. The claimant also testified that at times during the course of her employment with Shaw’s, she was asked to work in the seafood department. Her duties there sometimes required her to wait on customers and to clean and remove the heads from fish. These tasks required the use of scissors.

The claimant’s treating physician was Dr. Robert Tross. His reports and deposition testimony reflect that the claimant complained of pain in her right thumb in May 1999. On or about June 23, 1999, Dr. Tross injected the claimant’s right thumb with a steroid. The claimant contends at the time of that injection she told Dr. Tross of the pain in her left thumb.

The claimant’s employment with Shaw’s terminated on or about May 29, 1999. In June 1999 the claimant began employment with Temco Service Industries. Her employment with Temco required “mopping, vacuuming, dusting, emptying trash cans and tying trash bags.” Finding, ¶ 27. Dr. Tross opined that claimant’s bilateral trigger thumb condition was 90% related to her employment with Shaw’s and 10% related to her employment with Temco.

Following proceedings before the trial commissioner, the trier concluded that the claimant’s thumb problems arose from her repetitive work activities while in the employ of Shaw’s and Temco and pursuant to § 31-299b apportioned liability as 90% to Shaw’s and 10% to Temco. The ultimate issue presented for review by the appellant, Shaw’s, is whether the trial commissioner erred in finding and concluding that the claimant’s bilateral trigger thumb condition was caused by her work activities at Shaw’s. The appellant argues that the evidence upon which the trial commissioner’s conclusion rests is not legally sufficient.

The appellant contends that the trier’s findings result from impermissible factual inferences. Specifically, the appellant challenges the trier’s conclusion on the basis that Dr. Tross testified “cutting 20 dozen or more flowers per day would be causative of her bilateral trigger thumb condition.” Appellant’s Brief, p. 10. The appellant contends that as the claimant testified she alternated hands when operating the stem cutter she could not have cut the 20 dozen flowers which it argues is the threshold for causation between the claimant’s work activities and her bilateral thumb problems according to Dr. Tross.

The appellant seizes upon a portion of Dr. Tross’ deposition testimony and attempts to undermine its credibility. The appellant challenged the trier’s finding and conclusion on this issue in its Motion to Correct and moved that the trier correct his findings so as to include the following: “The Claimant alternated hands when cutting bunches of flowers with the stem cutter at Shaw’s.” The respondent contends that support for this finding is found in the claimant’s testimony at the February 22, 2001 Formal Hearing. See February 22, 2001 Transcript, p. 76. The trial commissioner denied the respondent’s Motion to Correct.

The respondent’s contention here, rests on what it perceives as an inconsistency between the basis of Dr. Tross’ opinion and the claimant’s testimony. The appellant states that as the claimant testified she cut 20 dozen flowers per day and that she alternated hands when operating the flower stem cutter, she in effect cut fewer than 20 dozen flowers per day and thus, there is no support for the trier’s finding. On appeal the legal validity of a commissioner’s ruling on a Motion to Correct is determined by whether the factual finding which the movant seeks to amend or delete is a fact that is admitted or undisputed, without evidence, and/or would alter the outcome of the case. Loffredo v. Wal-Mart Stores, Inc., 4369 CRB-5-01-2 (February 28, 2002).

In the instant matter the appellant overlooks Dr. Tross’ deposition testimony reflecting his awareness that the claimant alternated hands when using the stem cutter. October 23, 2000 Deposition, p. 31. Additionally, Dr. Tross testified that the claimant’s performance of tasks which he described as “pinching” contributed to the problems with her thumbs. Dr. Tross noted that the claimant’s use of scissors to remove the heads from fish when she worked in the seafood department, also contributed to thumb problems. Id., p. 37.

The trier’s determination in this matter results from the weight and credibility he assigned to the evidence before him. We will not disturb the findings and conclusions of a trial commissioner unless they are without evidentiary support, contrary to law or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, 248 Conn. 379 (1999); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Our review of the instant matter reflects that the trial commissioner did not violate any of the aforementioned tenets.

We , therefore, affirm the February 8, 2002 Finding and Award of the Commissioner acting for the Third District.

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

Workers’ Compensation Commission

Page last revised: December 16, 2004

Page URL: http://wcc.state.ct.us/crb/2003/4493crb.htm

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