State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Carney-Bastrzycki v. Hospital for Special Care

CASE NO. 4722 CRB-6-03-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 3, 2004

DONNA CARNEY-BASTRZYCKI

CLAIMANT-APPELLANT

v.

HOSPITAL FOR SPECIAL CARE

EMPLOYER

and

CONNECTICUT HEALTHCARE WORKERS’ COMPENSATION TRUST

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was pro se.

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

This Petition for Review from the August 25, 2003, Finding and Dismissal of the Commissioner acting for the Sixth District was heard March 19, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Donna Carney-Bastrzycki, has appealed from the August 25, 2003 Finding and Dismissal of the Commissioner acting for the Sixth District. We affirm the decision of the trial commissioner.

The parties stipulated that on November 20, 2000 the claimant sustained contact dermatitis and occupational asthma from chlorine exposure which arose out of and in the course of her employment. At the formal hearing the claimant sought a finding of compensability of an alleged urinary injury which arose from the same incident. Additionally the claimant asked for penalties, interest and attorney’s fees for the respondents’ alleged undue delay in acceptance of the claim.

The trial commissioner found the following pertinent facts. In September 1999 the claimant began working for the respondent-employer. She worked as a lifeguard and aqua-aerobic instructor. She also performed one-on-one aqua therapy for patients of the facility. The trial commissioner found on September 21, 20001 the claimant began treating with Dr. Eugene Ciccone for her asthma and dermatitis conditions. Although she testified that she also reported her urinary symptoms to Dr. Ciccone at that time, the medical records do not support the claimant’s testimony. On December 28, 20002 the claimant filed a First Report of Injury in which she failed to mention any urinary symptoms or problems.

On January 18 and 25, 2001 the claimant was examined and evaluated at Yale University Occupational and Environmental Medicine Program. At that time, her urinary symptoms were noted in the medical records. On February 19, 2001 the claimant began treating with Dr. Douglas Gerard for her urinary condition. Dr. Gerard referred the claimant to Dr. James Devanny who opined the claimant’s urinary difficulties were associated with her work-related chlorine exposure and assigned her a 20 per cent permanent disability to her bladder. On April 18, 2001 Dr. Michelle Horne a fellow in Occupational Medicine with the Yale University Occupational and Environmental Medicine Program, opined there was no known association between increased urination and chlorine exposure. On May 7, 2001 the claimant was evaluated by Dr. Marc J. Bayer of UConn Medical Group, Medical Toxicology Associates who opined that the claimant had interstitial cystitis which was ongoing and unrelated to the chemical exposure. On September 23, 2002 Dr. Paul J. Ceplenski, an Urologist, performed a records review regarding the source of the claimant’s urinary symptoms. He opined her urinary symptoms were not related to any type of chemical exposure. Dr. Bert Berlin, an Urologist who performed a Commissioner’s examination on November 7, 2003, opined in part, “Basically I would assume based on the clinical course that patient developed a vaginal irritation secondary to the chlorine which resulted in an associated urethritis with persistent symptomology.” He further stated, “Obviously this is all speculative but would go along with the clinical history and present findings.” Findings, ¶ L.

The trial commissioner found the claimant’s testimony regarding her symptoms of urinary problems from September 2000 to January 2001 not credible. He found the opinions of Doctors Horne, Bayer and Ceplenski who opined the claimant’s urinary problems were not caused by her chemical exposure, to be more credible and persuasive than the opinions of Doctors Gerard, Devanney and Berlin, who opined the claimant’s urinary problems were the result of a chemical exposure. The trial commissioner specifically found the Commissioner’s Examination report submitted by Dr. Berlin to be unpersuasive because it was speculative and at best based on the claimant’s own history. Therefore, the trial commissioner dismissed the claimant’s claim for her urinary injury and found the claimant had not sustained her burden of proof that the injury was the result of a chlorine exposure that arose out of and in the course of her employment with the respondent-employer.

The claimant appeals the Finding and Dismissal. The claimant alleges the commissioner’s findings were inconsistent with the evidence, contrary to law and erroneous3. Additionally the claimant has filed a Motion to Submit Additional Evidence.

We will first address the claimant’s Motion to Submit Additional Evidence. On January 7, 2004 the claimant submitted a Motion to Submit Additional Evidence in which she requested permission to submit medical reports dated November 25, 2002 and May 6, 2003. The claimant contends these reports were unavailable at the close of the formal hearing “due to serious ongoing medical issues.” Claimant’s January 7, 2004 Motion to Submit Additional Evidence. A party who wishes to submit additional evidence to this board must prove that there were good reasons for failing to present such evidence at the formal hearing. Admin. Reg. § 31-301-9. This board will not allow a party to submit additional medical reports which could have been obtained prior to the formal hearing when the moving party has not offered an explanation for failing to do so. Donlin v. Cytec Industries, Inc., 4415 CRB-7-00-7 (June 5, 2002), aff’d, 77 Conn. App. 903 (2003)(per curiam); Carr v. Southern New England Telephone Co., 13 Conn. Workers’ Comp. Rev. Op. 21, 22, 1846 CRB-3-93-9 (November 4, 1994). The claimant was represented by competent counsel at the formal hearing. She was able to obtain other medical reports and submit those in a timely fashion. The reports she now wishes to submit were dated, and presumably available, prior to the formal hearing. Without some further justification for the late submission of these reports we cannot allow the records into evidence. Therefore, the claimant’s Motion to Submit Additional Evidence is denied.

We will now address the claimant’s claimed errors with the Finding and Dismissal. The claimant alleges the trial commissioner found the claimant began her treatment for asthma and a skin condition due to high chlorine exposure on September 21, 2000 as opposed to the actual date this treatment occurred which was November 20, 2000. The claimant alleges that error regarding the date of injury detrimentally flaws the ultimate findings because it serves as the basis for the trial commissioner’s finding that the claimant was not credible in regards to timely reporting her urinary symptoms. The claimant filed a Motion to Correct this finding on January 8, 2004 which the trial commissioner denied on February 20, 20044. Apparently, the claimant initially had a skin reaction to the pool chemicals on September 21, 2000 and was treated for such. Claimant’s Exhibit A, September 21, 2000 medical note from Dr. Ciccone. The initial skin reaction substantially cleared up within a week and the claimant was cleared to go back to work as of September 28, 2000. Claimant’s Exhibit A, September 28, 2000 medical note from Dr. Ciccone. Thereafter, on November 21, 2000 the claimant had a second reaction to the pool chemicals which resulted in the alleged injuries involved in this claim. Claimant’s Exhibit A, November 21, 2000 medical note from Dr. Ciccone.

The trial commissioner correctly found the claimant sustained an injury on November 21, 2000. Findings, ¶¶1, 2 and B. However, the trial commissioner found the claimant testified that she began to treat with Dr. Ciccone for asthma and dermatitis on September 21, 2000. Findings, ¶ 5. The earliest that the claimant testified regarding complaints of asthma was shortly after November 20, 2000. September 30, 2002 Transcript, p. 19. The trial commissioner determined he did “not find the testimony of the claimant to be credible and persuasive specifically as to the issues of reporting her symptoms/complaints and history of urinary problems/complaints from September 2000 through January 2001.” Findings, ¶ M. However, since the date of injury was November 20, 2000 the claimant could not have complained about urinary symptoms until that date at the earliest.

In Sibilio v. Modern Printing & Lithography, 8 Conn. Workers’ Comp. Rev. Op. 35, 770 CRD-7-88-9 (February 21, 1990), we remanded the case back to the trial commissioner where the finding contained an error in the date of injury. In that case we did so because “the confusion in the dates was instrumental in the conclusion of non-persuasion.” Id. In this case we are not persuaded that the mistake regarding the date of injury was instrumental in the trial commissioner’s determination regarding causation. The trial commissioner articulated two factors that he considered upon determining causation. Although he discussed both the claimant’s credibility in reporting the urinary symptoms post-injury and the medical opinions regarding causation the trial commissioner chose to credit the medical opinion that the claimant’s chemical exposure did not cause her urinary problems, therefore when the exposure occurred or when the claimant complained of those symptoms are extraneous facts to his ultimate finding of no causation.

The trial commissioner has the latitude to review the medical evidence and determine credibility among differing medical opinions. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). Our role on review is not to retry the case, but to determine whether the trial commissioner’s findings were 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). We find the mistake in dates of injury irrelevant to the trial commissioner’s ultimate determination that causation does not exist between the claimant’s employment and alleged injuries therefore, we will not reverse the trial commissioner’s findings on that basis.

The claimant also alleges the trial commissioner’s finding is inconsistent with the evidence because no other explanation for the onset of her urinary tract problem was presented at the formal hearing. This contention is inconsistent with the record before us. Dr. Ceplenski concluded that the claimant’s condition could be caused by other urological conditions such as interstitial cystitis or other bladder frequency syndromes which are not well classified. Respondents’ Exhibit 3. Additionally, Dr. Bayer opined the claimant had interstitial cystitis which was not likely associated with the chemical exposure. Respondents’ Exhibit 2.

Additionally, the claimant claims the trial commissioner’s finding that the claimant did not include her urinary symptoms or complaints in her First Report of Injury is erroneous. In Paragraph E of the Finding and Dismissal the trial commissioner stated that the claimant did not note urinary symptoms/complaints on the First Report of Injury document. On that report the claimant describes her injuries as follows, “Chemical Burn/reaction on trunk, legs, Back, Stomach and chest. Burning & itching rash developed as well as respiratory difficulties. Cough producing mucus, extreme fatigue- red eyes.” Claimant’s Exhibit I. The claimant contends that the report of injury to “her skin including her trunk (which would obviously include her entire anatomy-including the most sensitive areas of the body) were affected by the high level of chlorine exposure on November 20, 2000.” Claimant’s Appeal Petition and/or Motion for Reconsideration, September 22, 2003. Although the claimant lists an injury to her trunk, we do not read this description to include any or all internal organs of the claimant’s body. Furthermore, there is no specific mention in this description of urinary problems or complaints as the claimant alleges. Additionally, as we explained above even if the claimant promptly reported her urinary symptoms that fact would not negate the fact that the trial commissioner gave greater weight to the medical opinion that the chemical exposure did not cause the claimant’s urinary dysfunction. Therefore, we do not find the commissioner’s finding to be erroneous in the manner claimed by the claimant.

The claimant finally alleges the trial commissioner’s decision is contrary to the law because none of the doctor’s opinions that he relied on performed a urological examination on her. She further contends that Dr. Michelle Horne a fellow in occupational medicine, was not qualified to render an opinion regarding causation. Where the medical opinions are in conflict, the trial commissioner’s determination must stand so long as there is evidence to support it. Hurley v. Bridgeport, 14 Conn. Workers’ Comp. Rev. Op. 366, 2037 CRB-4-94-5 (September 26, 1995); Salz v. Oliver’s Taverne, 12 Conn. Workers’ Comp. Rev. Op. 325, 1593 CRB-8-92-12 (July 5, 1994). A trial commissioner is not bound to accept the opinion of the claimant’s treating physician, as the trial commissioner has the exclusive right to make determinations regarding the weight and credibility of a witness’s testimony. Dubay v. D.R. Templeman Co., 3890 CRB-6-98-9 (October 14, 1999); Kerins v. Johnson Controls, 12 Conn. Workers’ Comp. Rev. Op. 72, 1419 CRB-8-92-5 (February 3, 1994). In order to prevail on appeal the claimant would have to demonstrate that the doctor’s opinions which the trial commissioner relied on were somehow legally unreliable, or that it did not say what the commissioner found that it said. Desrosier v. Newington, 3091 CRB-6-95-6 (December 16, 1996), aff’d, 47 Conn. App. 920 (1997)(per curiam). A trial commissioner is allowed to accept an opinion unless it is so unreasonable that no rational person could believe it. Id. As we have described, the trial commissioner’s discretion to make determinations regarding the credibility of medical evidence is broad. Inherent in that broad discretion is that the trier need not assign greater or lesser credibility on the basis of a physician’s credentials or specific examinations. For these reasons, we do not find the trial commissioner’s findings to be contrary to the law.

Therefore, we affirm the August 25, 2003, Finding and Dismissal of the Commissioner acting for the Sixth District.

Commissioners A. Thomas White and Charles F. Senich concur.

1 This date is in dispute and will be addressed later in the opinion. span class="back">BACK TO TEXT

2 Although paragraph E of the Finding references a December 18, 2000 First Report of Injury, the document is actually dated December 28, 2000. Claimant’s Exhibit I. This appears to be a scrivener’s error and was not an issue raised in the claimant’s Motion to Correct. span class="back">BACK TO TEXT

3 On September 22, 2003 the claimant filed a document entitled “Appeal Petition and/or Motion for Reconsideration.” In the body of the document the claimant delineates her reasons for appeal. In deference to the claimant’s pro se status we will treat this document as the claimant’s Reasons for Appeal. See McCarthy v. AT&T Communications, Inc., 3689 CRB-6-97-9 (August 7, 1998); Hines v. Linc Scientific Imaging, 3037 CRB-8-95-3 (April 14, 1997). span class="back">BACK TO TEXT

4 Although the claimant’s Motion to Correct was filed substantially after the two-week period Admin. Reg. § 31-301-4 allows, we presume the trial commissioner extended the time period allowed by the regulation by virtue of his ruling on the motion. span class="back">BACK TO TEXT

Workers’ Compensation Commission

Page last revised: September 8, 2004

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