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Krajewski v. Atlantic Machine Tool Works, Inc. a/k/a Atlantic Aerospace Textron

CASE NO. 4500 CRB-6-02-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 7, 2003

JAN KRAJEWSKI

CLAIMANT-APPELLANT

v.

ATLANTIC MACHINE TOOL WORKS, INC. a/k/a ATLANTIC AEROSPACE TEXTRON

EMPLOYER

and

FIREMAN’S FUND INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se on this appeal.

The respondents were represented by Richard Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the March 1, 2002 Finding and Dismissal of the Commissioner acting for the Sixth District was heard September 20, 2002 before a Compensation Review Board panel consisting of Commissioners Amado J. Vargas, Jesse M. Frankl, and Ernie R. Walker.

OPINION

AMADO J. VARGAS, COMMISSIONER. The claimant has petitioned for review from the March 1, 2002 Finding and Dismissal of the Commissioner acting for the Sixth District. He is representing himself in these proceedings. In support of his appeal, he has submitted many documents and offered a number of different arguments, but none of them provide us with any legal reason to overturn the trial commissioner’s decision. Accordingly, we affirm the trial commissioner’s Finding and Dismissal, with the exception of one issue that we need the commissioner to further articulate due to an inconsistency between the findings and the evidence.

As noted in a previous decision by this board, the claimant suffered a compensable injury to his left shoulder on June 10, 1981 while he was working for the respondent Atlantic Machine Tool Works, Inc., also known as Atlantic Aerospace Textron.1 See Krajewski v. Atlantic Aerospace Textron, 15 Conn. Workers’ Comp. Rev. Op. 44, 2120 CRB-6-94-8 (Nov. 28, 1995). This injury resulted in four surgical procedures between 1982 and 1988, and a 25% permanent partial disability of the claimant’s left arm. He last worked in April 1988. When his specific indemnity benefits ran out, he sought additional benefits pursuant to § 31-308a C.G.S. He was awarded 82 weeks of compensation, which lasted through June 15, 1991. A request for further § 31-308a benefits was denied on August 9, 1994, as the trier did not believe that the claimant had shown an increase in his work restrictions. The claimant appealed that decision to this board, but was unsuccessful. Krajewski, supra. He then returned to the Commission in an attempt to demonstrate that his disability had increased to the point where he was totally disabled, but the doctors’ reports indicated that he was capable of light duty work. In a January 16, 1997 decision, the trial commissioner found the claimant ineligible for any further benefits. That ruling was not appealed.

The claimant again appeared before this Commission at a series of formal hearings that were held during 2001. In a twelve-page Finding and Dismissal, the trial commissioner identified thirteen separate claims, twelve of which were raised by the claimant, and dismissed most of them. His remaining award consisted of an order that the respondents pay the claimant $10.80 for unreimbursed mileage between September 1996 and January 1997, and a finding that the claimant was overpaid $5,933.82 by the respondents, entitling them to reimbursement or a credit against any future benefits. The claimant has appealed that decision to this board. We will discuss each of the issues that the trier identified in his finding, after we provide the parties with an explanation of the workers’ compensation appeal process, and the standard of review that we may give to a trial commissioner’s decision.

When a trial commissioner holds a formal hearing to determine the facts of an unresolved claim, his job is to try the case and find facts based on the evidence that the parties present to him, the same way a judge does in a Superior Court bench trial. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). The claimant and the respondents are both allowed to introduce medical evidence, testimony, and other relevant records at the formal hearing. After the hearings are over, and the record has been closed, the commissioner must evaluate all of the evidence that the parties have submitted, and decide which of their arguments is the most believable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Warren, supra. Based on that evidence, the trier then makes decisions on the legal issues that the parties have raised. As the trier of fact, the commissioner has the sole authority to decide which, if any, of the evidence is reliable, and he is always free to decide that he does not trust a particular medical opinion or a particular witness’ testimony, even if there does not appear to be any evidence that directly contradicts it. Duddy, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

A party may appeal from the decision of a trial commissioner to this board. Our role is not to retry the case by considering new evidence, or by second-guessing the inferences that the trier has drawn regarding the credibility of the evidence that is already in the record. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Pallotto, supra. If the trial commissioner is not persuaded by a particular doctor’s medical opinion, or a claimant’s testimony regarding his disability, we do not have the power to look at that evidence again, and tell the commissioner that he was wrong. Duddy, supra. All we can do on appeal is review the trial commissioner’s decision for errors of law. This means that we must affirm a trier’s finding on a particular point of fact if there is any evidence in the record to support that finding, and we cannot disturb the findings unless material, undisputed facts have been omitted. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). Also, we must affirm the legal conclusions that the trier has drawn from the facts unless they result from an incorrect application of the law to those subordinate facts, or from an inference illegally or unreasonably drawn from them. Fair, supra; Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 145 (1972).

Our Workers’ Compensation Act is designed to be a speedy, inexpensive and effective means for processing compensation claims. Doe v. Yale University, 252 Conn. 641, 672 (2000). In a contested case, all parties have the right to expect that the claims made to the judge or commissioner will be fully resolved following the conclusion of the litigation process. When the issues raised in the case have been decided, and the appeal process is over, the decision on those issues is considered final, and the parties are bound by that decision. This principle of finality must be present in order for our legal system to function; otherwise, cases would never close, and claims would never be resolved. “Both employers and their injured employees must be able to depend on the finality of administrative decisions and the appeals taken therefrom in order to regulate their future behavior.” Marone v. Waterbury, 244 Conn. 1, 12-13 (1998).

Once an issue has been raised and determined by a commissioner, it cannot be raised again in a later action. Though a decision may be modified pursuant to § 31-315, this remedy is only available in cases that involve fraud, accident, mutual mistake of fact, changed conditions of fact, or a change in the incapacity of an injured employee. Id., 16-17; Drew v. Sears Roebuck & Co., 4400 CRB-7-01-5 (May 2, 2002). The Compensation Review Board recognizes that today’s system has become somewhat complex, and we allow pro se claimants a fair amount of leeway in complying with the procedures of this forum. However, a party’s confusion regarding the nature of the hearing process, such as that repeatedly asserted by the claimant throughout the record here, does not entitle this board to abandon core principles of our law. If a claimant has failed to address relevant issues during the first set of formal hearing proceedings, he does not get a second, third or fourth bite at the apple when he later realizes that he forgot something. A party is not entitled to present his case in a piecemeal fashion, nor may he indulge in a second opportunity to prove his case if he initially fails to meet his burden of proof. Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001).

Along with his appeal papers, the claimant has submitted a number of medical reports and other documents to this board, presumably because he wishes to present them as further medical evidence in support of his disability claim. This board may not consider materials that were not part of the record at the formal hearing, unless they are admitted pursuant to a Motion to Submit Additional Evidence that meets the standards of Admin. Reg. § 31-301-9. Such a motion cannot be granted unless the new evidence is material to the case, and the party submitting it has good reasons for not having made it available at trial. Drew, supra. Here, many of the reports and forms that the claimant has sent to us are duplicative of the evidence already in the record, and it appears that the information they impart could have been obtained by the claimant before or during trial, and offered at the formal hearing. This evidence does not meet the admissibility standard of § 31-301-9. Thus, we may not consider it as part of our review. Id.

The first claim listed in the trier’s written opinion, and in the August 20, 2001 formal hearing transcript, is the claimant’s mileage reimbursement claim. The trier found that the claimant was entitled only to mileage reimbursement for three visits to Dr. Zimmerman, his treating physician, totaling $10.80 (which the respondents agreed to pay for at the formal hearing). Those visits occurred between October 1996 and January 1997. The $254.20 balance of the sought-after reimbursement concerned doctor’s visits between 1986 and 1995; see Claimant’s Exhibit A (Exhibit 1); as well as charges incurred for parking fees and other transportation expenses. We note that § 31-312 does not specifically authorize payment of parking costs or taxicab fees (unless door-to-door transportation via ambulance or taxi is medically required), though it mentions mileage reimbursement for private motor vehicle use and costs incurred for public transportation. As the claimant has not alleged any error in his Brief or in his “Motion to Support Petition for Review” with respect to the trial commissioner’s decision regarding mileage and costs reimbursement, we need not review this issue further.

The second claim itemized in the trier’s decision is the respondents’ alleged underpayment of the claimant’s December 5, 1984 scarring award. He seeks a balance of $222.26. The trier found that Claimant’s Exhibit A (Exhibit 2) contains an accounting that indicates the “underpayment” was actually due to an offset for a previous overpayment. Upon examination, the evidence indeed supports that finding. As the claimant did not mention this issue in any of his appeal papers, we will not review it any further. Also, in regard to the next identified issue, which concerns the matter of legal fees owed to the claimant’s former attorney, Edward Krawiecki, we note that this subject was addressed in a December 27, 1991 Order, which was not appealed. Thus, the documents concerning the amount of the legal fee drawn by said attorney from a check that he received on the claimant’s behalf in 1989 would seem to pertain to an issue that should have been raised long ago, when the matter of the attorney’s fee was being decided. Schreiber, supra. As no discussion of this issue is present in the claimant’s appeal papers, we will turn our attention elsewhere.

The next issue listed in the trier’s decision is a request for reimbursement of $2,042.80 in premiums for health insurance premium payments that were made by the claimant’s spouse between 1993 and 1997. As the claimant worked for a private employer, § 31-284b C.G.S.’s requirement of health insurance coverage maintenance to injured employees and their families is inapplicable to this case. Pascarelli v. Moliterno Stone Sales, 3925 CRB-4-98-11 (Dec. 22, 1999), citing Luis v. Frito-Lay, Inc., Supreme Court, Docket No. SC 14536 (Order, April 27, 1993). Moreover, the statute would not apply to health insurance coverage provided on the basis of his wife’s employment. Thus, this claim was properly dismissed. As for the claimant’s argument that the state is entitled to reimbursement for the payment of medical insurance premiums, the issue was not addressed in his appeal papers, and we will not concern ourselves with it now.

Issue number six in the trier’s findings concerns the claimant’s request to correct the weekly compensation rate that was paid to him as per a March 1, 1984 voluntary agreement, as well as a claim for dependency benefits dating back to the years 1991 and 1992. The approved voluntary agreement reflects a compensation rate of $195.38, based on an average weekly wage of $293.07. The claimant has offered into evidence a notarized document dated March 27, 1982, that describes the claimant’s average weekly earnings as $317.30. Claimant’s Exhibit A (Exhibit 4). He seeks to have the compensation rate that was paid to him from September 18, 1982 through September 12, 1984 amended to reflect this increase.

As is the case with many of the claims raised herein, many years have passed since this matter was initially settled. The claimant has not shown that the circumstances relevant to his compensation rate have changed in any way between 1982 and the present, nor has information surfaced that could not have been provided earlier. We know of no ground upon which the voluntary agreement could be reopened under § 31-315. See Ciocci v. Morrison Knudsen Co., Inc., 4244 CRB-1-00-5 (June 1, 2001). Furthermore, the wage statement from Atlantic Aerospace shows that the claimant received gross wages of $6,957.68 during the 26 weeks preceding his June 10, 1981 injury, which averages out to $267.60 per week, rather than $317.30. The March 27, 1982 document does not explain the origin of the $317.30 figure. For all we know, that document merely reflects the claimant’s average earnings as of that date, which would be irrelevant for the purpose of calculating his average weekly wage as per § 31-310. Thus, the trial commissioner correctly declined to reopen the issue of the compensation rate. As the claimant does not mention the issue of dependency benefits in his brief, we take the time only to say that there appears to be no factual basis for this claim under the now-repealed § 31-308b, which was still in effect at the time of the claimant’s injury.

The next claim addressed by the trial commissioner was the claimant’s contention that he was illegally dismissed from his job within the meaning of § 31-290a. Woven throughout the claimant’s entire case is the argument that his employer unfairly withheld light duty work from him after his lay-off date of April 8, 1988. He returns to this issue frequently in his testimony. The fact is, this commission has already considered the claimant’s § 31-290a claim, in which the circumstances surrounding his layoff were discussed. See February 27, 1992 Finding and Dismissal. The trial commissioner in that case concluded that the claimant had offered insufficient proof to show that Atlantic Aerospace had laid him off or failed to give him light duty work because he had exercised his rights under the Workers’ Compensation Act. This decision was not appealed to the Appellate Court, as allowed by § 31-290a.2 The issues decided at that time are now final. The claimant does not have the right to walk into this forum ten years later and begin new litigation over this same set of facts. That part of the case has ended, and the trial commissioner correctly dismissed that claim.

The claimant should also understand that the employer’s obligation to provide light duty work to an injured employee does not continue ad infinitum. If a claimant has been legitimately laid off six or seven years after his injury, § 31-313 does not obligate the employer to later rehire that claimant and keep providing him with light duty jobs for the rest of his working life, long after his compensable injury has reached maximum medical improvement. Here in Connecticut, our system works differently, and a claimant may be forced to go out and look for work somewhere else.

Claim number eight concerns the compensation rate as determined in the August 8, 1991 Finding and Award, which prescribed a $263.75 rate for approximately 82 weeks of § 31-308a benefits, payable through June 15, 1991. This figure is based on his compensation rate as of April 9, 1988, which the previous commissioner referred to as the “1988 recurrence.” August 8, 1991 Findings, ¶ 23. The claimant contends that he did not receive this amount, but instead received his earlier base compensation rate of $195.38 per week. It appears from a September 5, 1991 letter in Claimant’s Exhibit A (Exhibit 6) that the $263.75 compensation rate was actually recognized and paid by the respondents, though ¶ 14(f) of the trial commissioner’s decision reflects that the $195.38 base rate was applied. The commissioner noted the respondents’ argument that the claimant did not appeal the 1991 Finding and Award, and held that he would not be allowed to reopen the matter now. Regardless of the amount that was ultimately paid at that time (which is difficult to ascertain from the record), we agree with the trier’s observation that it is too late to raise this matter for the first time in this appeal. Also, the claimant does not raise this issue in his brief. We need not address it further.

Ninth on the trier’s list is the compensability of the claimant’s hernia, left wrist, left shoulder, and stomach conditions. The trial commissioner found that the claimant failed to offer sufficient proof to establish any of these claims. In order to prove a relationship between his compensable shoulder injury of June 10, 1981 and these subsequent physical traumas, the claimant would have had to persuade the trial commissioner that each of those traumas was, in the opinion of a doctor, causally linked to his shoulder injury (or the medication he was taking for that injury) within a reasonable degree of medical probability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Canevari v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001). The trier, of course, has the sole authority to determine the credibility of evidence, including doctor’s reports. Warren, supra. As we review the evidence concerning the claimant’s recent dyspepsia, his February 27, 1994 fall which allegedly caused a hernia, and his February 23, 1987 shoulder injury recurrence that was also due to an alleged medication-related fall, we find no reason to reverse the trier’s assessment that the claimant failed to establish a prima facie case as to any of these conditions.

Dr. Devers’ reports in Claimant’s Exhibit A (Exhibit 7) mention the claimant’s use of NSAIDs (non-steroidal anti-inflammatory drugs, such as aspirin or ibuprofen) in the relevant history that he provided when he sought treatment for persistent dyspepsia, and the claimant has submitted into evidence some written documentation that describes stomach problems as a possible side effect of NSAID use. However, there is no doctor’s report that specifically explains that the claimant was using NSAIDs or other medicines because of his compensable shoulder injury, and that said medication probably caused his dyspepsia. The commissioner was within his rights in finding that the claimant did not introduce specific enough evidence to prove his claim. With regard to the February 27, 1987 fall, there is no direct evidence in the record to establish that claim. A doctor’s note of February 5, 1987 states that the claimant slipped and injured his shoulder in a parking lot; a notation in the margin also mentions ice on a driveway. Claimant’s Exhibit A (Exhibit 8). As for the hernia, the claimant contends that he fell down the stairs on August 15, 1994 due to the medication he was taking. Dr. Saranchak said that “it is within the realm of possibility that a fall could cause his hernia,” but said nothing more. Claimant’s Exhibit A (Exhibit 10). Neither of these injuries has been linked to the claimant’s shoulder condition within a reasonable degree of medical probability, and the trier properly dismissed those claims.

We then reach the claimant’s alleged January 23, 1992 left wrist injury, which he likewise attributes to a fall that was occasioned by the effects of pain medication. The trial commissioner noted a report by Dr. Anderson that supports a direct connection between the wrist injury and the pain medication that the claimant was taking for his left shoulder. Findings, ¶ 15(i); Claimant’s Exhibit A (Exhibit 9). This report purports to have relied on earlier documentation by Dr. Filewicz and New Britain General Hospital. The trier concluded that “the opinions/reports of New Britain General Hospital and Dr. Filewicz [are] more credible and persuasive than those of Dr. Anderson,” and dismissed the claim. Findings, ¶ 15(r). Reviewing the record, we see that the January 23, 1992 hospital intake notes reflect that the claimant “stated he took meds this AM (Percocet and Xanax), states he “blacked out,” landing on left wrist.” No indication is given that this history was questioned by the hospital staff. Several days later, Dr. Filewicz examined the claimant, noting that “he had fallen at home after taking some medications and injured his left wrist.” On November 20, 1992, Dr. Filewicz saw the claimant for a recurrence of wrist pain, and wrote in his report, “He still claims that he fell because he took the medication which made him dizzy, causing him to fall, injuring and fracturing his left wrist.” The doctor may not endorse this description, but he does not directly indicate that he has doubts about the claimant’s description of this etiology, either.

In his discretion to determine credibility, the trial commissioner would have been free to decide that the history provided by the claimant was inaccurate or unreliable, and dismiss the claim accordingly. He could also have determined that there was insufficient evidence to establish that the claimant was taking medications due to his 1981 compensable injury. Of course, no medical report is automatically credible as a matter of law. Pallotto, supra. However, the trier specifically found that the hospital report and Dr. Filewicz’ reports were credible, and relied on them in dismissing the wrist injury claim. On review, it is not readily apparent that these reports favor dismissal. The trier may have drawn some inference from these reports unsympathetic to the history given by the claimant, but the nature of that inference is not readily apparent from his findings. As we perceive ¶ 15(r) of the commissioner’s findings to be consistent with the reports of the hospital and Dr. Filewicz, we must remand this issue to the trier so that he may better articulate his reason for dismissing the claimant’s wrist injury claim.

Number ten on the list of claims is the claimant’s request for additional permanency benefits for his left shoulder, and 10% permanency of his left wrist. The trier dismissed the claim for wrist permanency in light of his dismissal of the underlying injury claim. We have remanded that issue for articulation due to an inconsistency in the findings. Should something change regarding that claim on remand, the issue of wrist permanency would then have to be reconsidered. Otherwise, the trier’s decision would stand on appeal. As for the shoulder claim, the claimant asserts that he is entitled to additional benefits due to an increase in his rating from 25% to 30% (omitting the additional 6% attributed to his wrist permanency), based on Dr. Anderson’s August 24, 1999 report, which seems to have used a “full person” disability formula. Claimant’s Exhibit A (Exhibit 9). The trier did not find this report credible, and held that the claimant did not sustain his burden of proof as to an increase in his left shoulder permanency from the 25% reflected in the August 30, 1999 approved voluntary agreement. We find no error in that regard, as the matter was essentially one of evidentiary credibility. This is so regardless of whether Dr. Anderson should have been considered an authorized treater, which he was found not to be pursuant to ¶ 16(f) of the trier’s dismissal order. (Contrary to the claimant’s assertion in his brief, we can locate no evidence in the record that establishes a valid referral from Dr. Filewicz.)

Lastly, the trier addressed the claimant’s assertion that he is entitled to a reinstatement of his pension benefits from 1981 through 2001. We are unaware of any statutory basis for this claim, and affirm the trier’s dismissal of that issue. As the claimant did not address in his appeal papers ¶ M of the trier’s decision, which states that the “respondent shall be entitled to the repayment or a credit against future benefits due and owing the claimant in the amount of $5,933.82,” we need not consider that matter on review.

We note that, in his appellate brief, the claimant makes mention of a Social Security decision regarding total disability. As we stated in our last Krajewski opinion, this Commission does not use the same standards to adjudicate disability as does the Social Security Administration. See Zizic v. Sikorsky Aircraft Division, 3732 CRB-4-97-11 (July 7, 1999). Thus, it is normally not instructive for us to look at a decision made by a Social Security Administrative Law Judge. Furthermore, we declined to admit this ruling into evidence in our previous opinion, and we consider the matter settled.

The trial commissioner’s decision is accordingly affirmed, with the exception of the one issue concerning the claimant’s wrist injury of January 23, 1992. With respect to that issue, we remand this case solely for an articulation of the basis of the trier’s decision to dismiss that claim. No further hearings need be held, unless the presiding commissioner deems it necessary or prudent to do so.

Commissioners Jesse M. Frankl and Ernie R. Walker concur.

1 The trial commissioner’s decision lists the date of injury as July 11, 1981. Both a January 16, 1997 Finding and Award and this board’s previous decision reflect a June 10, 1981 date of injury. However, this discrepancy is unimportant to the resolution of this appeal, as no one is challenging the occurrence of the claimant’s accepted shoulder injury. We also take note of a previous trier’s finding that the claimant is from Poland, and had only been living in the United States for one year at the time of his injury. He has a grammar school education, and his capacity to comprehend written and spoken English is limited enough that he requires the use of an interpreter. BACK TO TEXT

2 The claimant instead appealed to this board. As we lack jurisdiction over appeals from § 31-290a decisions, we dismissed that appeal for lack of subject matter jurisdiction in Krajewski, 11 Conn. Workers’ Comp. Rev. Op. 54, 1387 CRD-6-92-2 (April 1, 1993). BACK TO TEXT

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