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Lanteri v. City of New London-Police Dept.

CASE NO. 4752 CRB-2-03-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 19, 2005

NANCY LANTERI

CLAIMANT-APPELLANT

v.

CITY OF NEW LONDON-POLICE DEPT.

EMPLOYER

and

CIRMA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se at oral argument.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the November 13, 2003 Finding and Dismissal of the Commissioner acting for the Second District was heard September 24, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr., and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 13, 2003 Finding and Dismissal of the Commissioner acting for the Second District. She contends on appeal that the trial commissioner erred by dismissing her claim for a compensable injury. We find no error, and affirm the decision of the trial commissioner.

The trier found the following facts. The claimant was employed by the respondent City of New London on September 25, 2002 as a clerk-typist. On that date at about 4:00 p.m., she felt a pain in her arm, shoulder and chest while lifting a four- or five-pound binder from an overhead compartment during the course of her employment. After she left the workplace at her usual departure time of 4:30 and arrived home, the pain intensified. She called her husband, and also called work to report the injury.

After her husband arrived home that evening, she went to the emergency room, where she recalled complaining of back pain and piercing pain in her chest that extended into the neck and head. Hospital records show that she had given a history of being very busy at work that day, amidst which activity she began to experience pain in her mid-chest region. She presented with complaints of a headache, chest and upper abdominal pain. Dr. Kane, the attending physician at the hospital, testified that she presented very dramatically and with much emotional distress, and his impression was that her complaints went beyond the objective findings of his examination. He tentatively diagnosed her with costochondritis1 and severe anxiety, with a headache overlay. He also stated that her complaints of pain were limited to her chest and sternal notch (the area from the bottom of her neck to the upper part of her abdomen).

The following day, the claimant called her office and reported her injury to her supervisor, Deputy Gavitt. On September 27, 2002, she visited her primary care physician, Dr. Jones, who noted complaints a pop/pull in the claimant’s left upper chest, a migraine headache, stress at work, and an upset stomach. Dr. Jones saw the claimant again on October 4, 2002, with continuing complaints of stabbing chest pain and nausea. Dr. Jones returned the claimant to light duty work.

On October 9, 2002, the claimant returned to work for a half day, whereupon she was seen at the Occupational Health Center. She indicated that, around noon, she lifted a five-pound notebook, and felt anterior chest, arm and upper back pain on her left side. She was diagnosed with a strain, and released to light duty work the next day. When she returned to work on the following day, she continued to complain of chest and left arm pain, and was taken out of work. She returned to light duty on October 16, 2002, when she reported feeling a little better to the Occupational Health Center staff. However, she returned to Dr. Jones on October 18, 2002, with complaints of further pain. Dr. Jones took her out of work. She was again released to light duty on October 23, 2002, by the Occupational Health Clinic, and was again removed from work by Dr. Jones on October 24, 2002. On October 31, 2002, Dr. Jones recommended that the claimant undergo physical therapy.

The claimant paid a visit to Dr. Miller on November 26, 2002, whom she provided with a history of sudden and severe anterior lateral chest pain and left arm pain, with additional pain in her neck, left medial scapular border pain, and some numbness in some of the digits on her left hand, including the thumb. Dr. Miller suspected a muscle sprain or rib fracture, and noted that her symptoms were consistent with a herniated cervical disk. On December 2, 2002, Dr. Miller indicated that rib studies were normal, and recommended a cervical MRI. On the basis of that MRI, Dr. Miller identified a small left-sided herniated disc at C5-C6.

The respondents requested that the claimant undergo an examination by Dr. Barnett, who evaluated the claimant on March 25, 2003. Dr. Barnett opined that the claimant had vague diffuse complaints with regard to her left chest wall and shoulder girdle, as well as a possible C5-C6 discogenic injury. Dr. Doherty, a neurosurgeon, saw the claimant on April 9, 2003, and diagnosed a left C6 radiculopathy. He recommended cervical epidural steroid injections, and placed the claimant on Neurontin. When that medication failed to work over the course of the following month, Dr. Doherty again recommended steroid injections, with surgery being advisable if the injections were ineffective. He released the claimant to light duty as of May 28, 2003.

At the formal hearing, testimony was provided by Brenda Fleming, an administrative assistant who worked for the respondent. Fleming worked with the claimant, and oversaw the flow of her work. She testified that it was unlikely that a clerk-typist would have to lift anything weighing over ten pounds, and that in the three years she worked with the claimant, she never saw her lift anything heavier than a ream of paper. In fact, the claimant consistently refused to lift anything heavy.

Fleming also stated that, prior to September 25, 2002, the claimant became involved in a dispute with her union over her refusal to move payroll binders. Fleming testified that, on the evening of September 25, or 26, the claimant had an unpleasant and heated conversation with one of the respondent’s police officers over time records. Before the claimant returned to work on October 9, 2002, she sought to have a meeting to discuss alleged harassment by one of the police officers. Prior to the claimant’s return to work, a meeting was held at which the claimant requested a transfer to the evening shift. This was denied due to an unavailability of open positions. Fleming also stated that, on October 9, 2003, she observed the claimant working except for when the claimant was delivering mail. The claimant was moving very slowly, just shuffling papers back and forth, and Fleming never saw the claimant lift anything.

In a deposition, Dr. Barnett testified that the claimant’s subjective complaints were inconsistent with the objective and radiographic findings. He stated that, if the claimant’s history of injury were accurate, her myofascial, rhomboid, neck, trapezial, and shoulder pain were probably related to or caused by the lifting incident. Her cervical disc abnormality, however, is not a type of injury typically caused by the lifting incident alleged, and is commonly an incidental finding.

After considering the evidence, the trial commissioner concluded that the claimant’s testimony was not credible. He did find the testimony of Brenda Fleming credible, however. He also found the testimony of Drs. Kane and Barnett to be the most credible medical opinions, in that the claimant did not initially exhibit any neck problems, and the cervical radiographic findings were merely incidental. The trial commissioner reasoned that, because the claimant’s history of injury was not credible, the medical opinions based on that history were also not reliable. Thus, he concluded that the claimant had failed to meet her burden of proving a compensable work-related injury. The claimant has appealed that decision to this board.2

We begin by explaining that, when a workers’ compensation commissioner holds a formal hearing, his duty is to find facts based on the evidence presented to him at trial. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). The claimant has the burden of proving every element of her claim, such as the occurrence of an injury at the workplace, the existence of a physical disability, and the relationship between that disability and the alleged injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Warren, supra. During the formal hearing process, the claimant and the respondents are both allowed to present evidence and medical testimony. Once the hearing is over, the trial commissioner must evaluate all of the evidence, and decide which of the parties’ arguments, if any, are the most believable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy, supra. The trial commissioner has the sole and ultimate authority to decide which evidence is the most persuasive, and he is always free to decide that he does not trust a particular doctor’s opinion or someone’s testimony as a witness, even if there does not appear to be any contradictory evidence. Id.; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

In this case, the claimant was attempting to prove that she had injured certain body parts while lifting a payroll binder at her workplace, including her neck. It was up to the trial commissioner to decide whether her evidence was reliable enough to establish that the injury occurred as alleged, and whether that injury led to the claimant’s cervical condition within a reasonable degree of medical probability. Murchison, supra; Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). The trier determined that the claimant had not met that burden of proof.

Once the trial commissioner issued his factual findings, the claimant had the option of filing a Motion to Correct pursuant to Admin. Reg. § 31-301-4 if she sought to have the findings corrected based on items of disputed evidence.3 In fact, many of the arguments that the claimant has raised on appeal are based on her assertions that testimony by key witnesses such as Brenda Fleming and Dr. Barnett was inaccurate, or inconsistent with other evidence in the record. The only individual with the authority to reconsider issues of credibility is the trial commissioner, via the mechanism of a Motion to Correct. The claimant filed no such motion in this case. However, in recognition of the claimant’s pro se status, the trial commissioner construed the claimant’s Reasons of Appeal as a Motion to Correct. That motion was denied on August 30, 2004. Therefore, we presume that the trial commissioner considered the credibility issues raised within the Reasons of Appeal, and reaffirmed his interpretation of the testimony. See Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003).

Here on review, this board does not have the power to substitute its own judgment regarding factual issues for that of the trier of fact. Warren, supra. All we may do is review the trier’s findings to determine whether there is any evidence in the record to support them, and to determine whether the trier may have incorrectly omitted material facts that are truly admitted and undisputed. Duddy, supra; Warren, supra. The Compensation Review Board exists to correct legal error that may have affected the trier’s decision. We do not afford a claimant a second chance to try her case. Id.

The core findings that led to the trial commissioner’s dismissal of the claimed injury were (1) that the claimant’s testimony concerning the circumstances of her injury was not credible, and (2) that Fleming’s contradictory testimony was credible. Clearly, it is not the place of this board on appeal to state that the trial commissioner was required to believe the claimant’s testimony, nor can we state that he was required to discredit the testimony of her co-worker. The only person who was present to evaluate the demeanor of those witnesses during their testimony was the trier himself. Persico v. Sikorsky Aircraft Corp., 4464 CRB-4-01-12 (November 15, 2002). The decision was thus properly left to him.

Here, the trial commissioner found Fleming’s statements more believable than those of the claimant. Fleming explained, for example, that the clerk-typist job did not require continuous sitting, standing or walking for long periods of time, which was the set of work restrictions that Dr. Doherty had ascribed to the claimant in his May 9, 2003 report. July 16, 2003 Transcript, p. 44; Respondent’s Exhibit 2. As noted above, Fleming also stated that the claimant had refused to lift payroll binders in the past because of their weight, and that she had not seen the claimant lift anything on October 9, 2002, when the claimant alleged that she had again hurt herself lifting a five-pound notebook. Transcript, pp. 45-48.

It was the trial commissioner’s prerogative to evaluate the respective testimony of those witnesses, and to choose between them. Benjamin v. Uniroyal Technology, 4304 CRB-7-00-10 (September 19, 2001). We must abide by his credibility assessment on appeal, and uphold the factual findings dependent on that assessment. We also note that, in general, when a trial commissioner finds that a claimant’s testimony surrounding the circumstances of an injury is not credible and dismisses the claim for that reason, there is little remedy that this board can offer on appeal. See, e.g., Fox-Gould v. Brooks Pharmacy, 4215 CRB-2-00-3 (May 23, 2001); Dubay v. M&R Express, 3847 CRB-1-98-6 (September 2, 1999). Where a trial commissioner finds that he cannot rely on a claimant’s testimony regarding the cause and time of an injury, and dismisses that claim, this board has little choice other than to affirm that decision barring legal error of a type not present in this case.

Accordingly, the trial commissioner’s decision is affirmed.

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

1 “Costochondritis” is defined by Stedman’s Medical Dictionary as “The inflammation of costal cartilages that is characterized by pain of the anterior chest wall that may radiate.” Costal cartilages form the anterior continuation of the ribs. BACK TO TEXT

2 The claimant did not file Reasons of Appeal within ten days of the filing of her November 24, 2003 petition for review as required by Admin. Reg. § 31-301-2. The respondents reacted to this omission by filing a timely Motion to Dismiss the claimant’s appeal on December 8, 2003. We note that the claimant is unrepresented by counsel, and from correspondence contained in the record, it appears that she was not familiar with this Commission’s appeal process. After receiving a letter from this board concerning her failure to file any documents in support of her appeal, the claimant moved to postpone oral argument (which had been scheduled for May 28, 2004). She then filed Reasons of Appeal on July 19, 2004, in the form of a single document that appears to serve as both Reasons of Appeal and as an appellate brief.

An appellant’s failure to file timely Reasons of Appeal renders the appeal voidable by this agency. Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 697 (1987); Horobin v. West Haven, 4724 CRB-3-03-9 (December 2, 2004). In other words, this board has discretion to dismiss the appeal if the circumstances warrant it. Where a party is appearing without the assistance of legal counsel, however, we generally afford that party greater latitude with respect to compliance with appellate procedures, to the extent that we have discretion over such matters. Rurak v. Sweet Life Inc., 4630 CRB-1-03-2 (February 6, 2004); McCarthy v. AT&T Communications, Inc., 3689 CRB-6-97-9 (August 7, 1998). The respondents have not alleged that they have been prejudiced by the claimant’s late filing of Reasons of Appeal, or from the combination of her brief and her Reasons of Appeal into one document. Indeed, we are aware of no undue prejudice that has occurred in this case. Therefore, we decline to dismiss the claimant’s petition for review. See Mycek v. U.S. Surgical Corp., 3669 CRB-3-97-8 (August 26, 1998). BACK TO TEXT

3 Admin. Reg. § 31-301-4 states, “If the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for, certified by the stenographer who took it, but if the appellant claims that substantially all of the evidence is relevant and material to the correction sought, he may file all of it so certified, indicating in his motion so far as possible the portion applicable to each correction sought. The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.” BACK TO TEXT

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