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Soto-Velez v. Michael’s Chrysler Plymouth

CASE NO. 4628 CRB-2-03-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 3, 2004

JONATHAN SOTO-VELEZ

CLAIMANT-APPELLANT

v.

MICHAEL’S CHRYSLER PLYMOUTH

EMPLOYER

and

RISK ENTERPRISE MANAGEMENT

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Thomas C. Simones, Esq., Law Offices of Thomas C. Simones, 728-A Broad Street Extension, Waterford, CT 06385.

The respondents were represented by James D. Moran, Jr., Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the January 22, 2003 Finding and Dismissal of the Commissioner acting for the Second District was heard August 29, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Jonathan Soto-Velez, has appealed from the January 22, 2003 Finding and Dismissal of the Commissioner acting for the Second District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. The claimant was employed as an automobile re-conditioner for the respondent, Michael’s Chrysler Plymouth. During the course of his employment the claimant was exposed to various cleaning solvents and paint fumes. On several occasions from December 2001 to the fall of 2002 the claimant experienced intermittent episodes of shortness of breath and dizziness which incapacitated him from working and caused him to visit the emergency room numerous times. The claimant’s treating physician, Dr. Paul Licata, testified the claimant had a lung impairment condition that was causally related to his exposure to chemicals and materials he used at his workplace. Dr. Licata diagnosed the claimant with Reactive Airway Disease Syndrome [hereinafter RADS], an offshoot of Occupational Asthma. October 23, 2002 Transcript, p. 30.

On July 23, 2002, Dr. Michael Conway performed a commissioner’s examination of the claimant. Dr. Conway opined the claimant did not suffer from either asthma or RADS, but rather his symptoms were the product of hyperventilation. The trial commissioner found the opinion of Dr. Conway credible, persuasive and compelling and the opinion of Dr. Licata to be unpersuasive. Therefore, he dismissed the claimant’s claim for benefits.

The claimant appeals the trial commissioner’s findings on two bases. Firstly, the claimant alleges the trial commissioner gave no weight to the OSHA report submitted into evidence.1 Secondly, the claimant asserts Dr. Conway did not consider a diagnosis of RADS at the time of his diagnosis, and therefore the commissioner’s reliance on his testimony was inappropriate. We note, the claimant has not filed a Motion to Correct the trial commissioner’s findings, pursuant to Admin. Reg. § 31-301-4. Therefore, on review we are limited to the existing factual findings. 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); Mycek v. U.S. Surgical Corp., 3669 CRB-3-97-8 (August 26, 1998). As both of the claimant’s alleged errors address the factual findings of the trial commissioner, we must affirm the trial commissioner. However, even if the claimant had filed a timely Motion to Correct, we still would have affirmed the trier’s findings.

We will not overturn 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). Although the claimant alleges the trial commissioner failed to give any weight to the OSHA report as evidence, the trial commissioner specifically states in his findings he “reviewed all testimony in this particular matter as presented, all Claimant’s Exhibits, all Respondent’s Exhibits, and all items administratively noticed in this particular case.” Findings, ¶ 15. Therefore, the trial commissioner necessarily reviewed the OSHA report, Claimant’s Exhibit G, and assigned the report whatever weight he believed appropriate. We do not have the authority to substitute our judgment as to the significance of this report on review. Furthermore, we note the mere presence of OSHA violations in and of themselves do not necessarily mandate a finding in the claimant’s favor. Even if a claimant proves exposure to a hazardous material, he must still “prove causation by a reasonable medical probability” of any claimed impairment. Rondeau v. General Dynamics Corp., 14 Conn. Workers’ Comp. Rev. Op. 380, 2073 CRB-2-94-6 (October 5, 1995). The trial commissioner found the claimant did not meet his burden of establishing his injury arose out of and in the course of his employment, and therefore dismissed his claim for workers’ compensation benefits in this matter. Findings, ¶¶ H, I.

The claimant contends Dr. Conway did not consider a RADS diagnosis when he examined the claimant, and therefore the trial commissioner’s reliance on his testimony was inappropriate. The claimant was referred to the doctor for a commissioner’s examination to determine, among other things, diagnosis and opinion on causation. Administrative Notice Exhibit 3. The doctor was not limited to a certain set of medical conditions to review. Dr. Conway testified as follows: “So I thought he had neither RADS or asthma.” November 18, 2002 Deposition of Dr. Michael Conway, p. 15. “But I would have made the diagnosis of RADS, if I thought back then it was a consideration. I didn’t think it was a consideration at the time, and I didn’t make the diagnosis. Now I’m requestioning [sic], in light of what Dr. Licata had said on the more recent materials, where his diagnosis is RADS. I respectfully disagree with Dr. Licata.” Id., p. 22. “. . . I don’t think the patient fit RADS in the way he presented nor in the way he was tested.” Id., p. 24. “I don’t believe he has RADS.” Id., p. 25. There was ample evidence that Dr. Conway did not believe the claimant had RADS. There is no requirement the doctor consider a specific diagnosis at the time of examination if he did not believe the patient had symptoms attributable to that diagnosis. Dr. Conway did not believe the claimant had RADS based on his examination and review of the claimant’s medical history and records. Findings, ¶¶ 13, 14. For these reasons, the trial commissioner’s reliance on the doctor’s testimony would not have been overturned on this basis.

Therefore, we affirm the January 22, 2003 Finding and Dismissal of the Commissioner acting for the Second District.

Commissioners James J. Metro and Howard H. Belkin concur.

1 Although this issue was listed in the Reasons for Appeal and presented at oral argument, it did not appear in the appellant’s brief. span class="back">BACK TO TEXT

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