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Vonella v. Rainforest Café

CASE NO. 4788 CRB-6-04-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 16, 2005

ANGELA VONELLA

CLAIMANT-APPELLANT

v.

RAINFOREST CAFÉ

EMPLOYER

and

ACE USA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se at oral argument.

The respondents were represented by James Pomeranz, Esq. and Heather Porto, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the February 13, 2004, Finding and Award of the Commissioner acting for the Sixth 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, Angela Vonella, has appealed from the February 13, 2004, Finding and Award of the Commissioner acting for the Sixth District.1 We affirm the decision of the trial commissioner.

The pertinent facts in this matter are as follows. The claimant was employed by the respondent Rainforest Café as the restaurant manager. On November 26, 2002 while working at the restaurant the claimant was struck on the head by a lexan pan that fell from three feet above her. As a result of the injury the claimant suffered a large bump and laceration on her head, and a corneal abrasion. At the time of the accident the claimant was transported to Bristol Hospital where the laceration was stapled. She was discharged and released to work on December 3, 2002.2

The claimant was next treated by Dr. Victor Wasileuskas of Alliance Health who prescribed Ibuprofen and Cyclobenzaprine and released claimant to light duty as of December 3, 2002. The claimant was then referred back to her own physician, Dr. Antonio Scappaticci, for follow up.

The claimant continued to complain of headaches. Dr. Scappaticci ordered an MRI. The MRI revealed nothing of significance other than the claimant was suffering from sinusitis. Dr. Scappaticci referred the claimant to a neurologist, Dr. Andre Lerer. Dr. Lerer first saw the claimant on January 3, 2003. He noted the claimant continued to complain of headaches and difficulty in concentration. Upon examining the claimant, Dr. Lerer concluded the claimant was suffering from post traumatic/post concussive syndrome upon which was superimposed anxiety and panic attacks. The claimant continued to treat with Dr. Lerer who over the course of her treatment added Zoloft and Amitriptyline to her prescription regimen. See Claimant’s Exhibit A.

On March 13, 2003, at the request of the respondents, the claimant was examined by Dr. Edward J. Fredericks, a neurologist. Dr. Fredericks provided his opinion in which he concluded the claimant suffered a mild concussion at the time of her injury but did not sustain any traumatic brain injury. He also noted the claimant demonstrated a significant emotional overlay to her injury and little motivation to return to work. He opined the claimant was at maximum medical improvement and was capable of returning to work at full duty. Although the claimant was examined by other physicians for the purposes of the issues presented in this appeal we need not review those visits and impressions.

Proceedings relating to the claimant’s claim were held before the trial commissioner. Considered by the trial commissioner were claimant’s entitlement to § 31-307 temporary total benefits, § 31-308(a) temporary partial benefits and interest and attorney’s fees pursuant to § 31-300. Following those proceedings the trial commissioner issued his February 13, 2004 Finding and Award in which he awarded the claimant temporary total disability benefits from November 27, 2002 through March 13, 2003, the date of maximum medical improvement as given by Dr. Fredericks. The trial commissioner also awarded 6% interest on past due benefits. However the trial commissioner dismissed claimant’s claim for benefits pursuant to § 31-308(a) and § 31-300. The claimant filed this appeal.

The claimant was represented at the trial level by Atty. Angelo Severino and appeared pro se on appeal. The claimant did not file a Motion to Correct the factual findings of the trial commissioner, although an extension to file same was sought and granted. We note the claimant has filed a Motion to Submit Additional Evidence. In her appeal she argues, inter alia, the trial commissioner erred in failing to award her total disability for the period from November 26, 2002 through November 1, 2003. She also claims the trial commissioner erred in failing to award interest in the amount of 12% per annum and in failing to award attorney’s fees.

We first consider the claimant’s Motion to Submit Additional Evidence.3 Claimant seeks to add various performance reviews pre-dating her injury. A party who wishes to submit additional evidence must prove that there were good reasons for failing to proffer the evidence at the formal hearing. See Admin. Reg. § 31-301-9. This board will not allow a party to submit additional evidence where that evidence was available at the time of the formal hearing and without providing adequate grounds for failing to present the evidence at the formal hearing. See Delconte v. State/Department of Correction, 4766 CRB-8-03-12 (December 8, 2004); Carney-Bastrzycki v. Hospital of Special Care, 4722 CRB-6-03-9 (September 3, 2004). The claimant has not given any reasons why the evidence was not presented at the hearings below. We therefore, deny the claimant’s Motion to Submit Additional Evidence. Additionally, the claimant has most recently submitted a letter and new medical evidence via a facsimile dated March 7, 2005.4

Whether a claimant is entitled to temporary total benefits pursuant to § 31-307 and if so, the duration, is a largely factual determination. Donaldson v. Julia Duhaime, 4213 CRB-6-00-3 (April 30, 2001). Here, the claimant contends the trier erred in failing to award total disability for a period beyond March 13, 2002. However, the trier’s conclusion is dependent upon the weight and credibility to the evidence presented. We have held on any number of occasions that a trial commissioner’s findings and conclusions relating to the weight and credibility will not be disturbed unless resulting from an abuse of discretion. Calderoni v. B & T Contractors et al, 4207 CRB-5-00-3 (May 4, 2001). We also note the claimant failed to file a Motion To Correct thus, our review on appeal is limited to the facts as found by the trial commissioner. See Rurak v. Sweet Life Inc., 4630 CRB-1-03-2 (February 6, 2004).

Essentially, the appellant seeks to have this board independently assess the evidence presented and substitute our presumably more favorable conclusions for those reached by the trial commissioner. This we will not do. This board does not engage in de novo proceedings and will not substitute our factual findings for those of the trial commissioner. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Papapietro v. Bristol, 4674 CRB-6-03-6 (May 3, 2004).

Our review is limited to whether the trial commissioner’s February 13, 2004 Finding and Award was the result of legal error. We find none. Here the trial commissioner gave greater weight to the expert medical opinion of Dr. Fredericks and in so doing concluded claimant was only entitled to temporary total disability benefits through March 13, 2003. That conclusion was supported by the evidence and as such will not be disturbed.

We next consider the claimant’s contention that the trial commissioner should have awarded her attorney’s fees and interest at the rate of 12% per annum. In order for a commissioner to order payments in the form and amount requested by the claimant, a finding that the respondents unreasonably delayed payment of her claim is a prerequisite. See e.g., Bilodeau v. Bristol Association for Retarded Citizens, 4245 CRB-6-00-5 (May 29, 2001). The trial commissioner did not make such a finding and as we noted above, the claimant failed to preserve her dispute as to the trier’s findings in the absence of a Motion to Correct.

Finally, the claimant claims the trial commissioner failed to recognize her emotional impairment resulting from her injury. The respondents contend the claimant never submitted a claim for mental or emotional impairment. Nonetheless, a review of the trial commissioner’s findings reveals the trier considered evidence submitted relating to a psychological injury. See Findings, ¶¶ 15, 16, 18, 22, 26, 28, 29.

Both Doctors Lerer and Fredricks agreed that the claimant had psychological issues. Findings, ¶¶15, 22. However, there is no medical opinion in the record addressing the impact of any alleged psychological impairment on the claimant’s ability to return to work following the date of maximum medical improvement. We think it is apparent the trier considered the psychological component of the claimant’s injury in his determination of her capacity to work. It seems he was not persuaded that any such alleged impairment resulted in the claimant’s inability to work as of March 13, 2003.

For these reasons, we affirm the February 13, 2004 Finding and Award of the Commissioner acting for the Sixth District.

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

1 We note extensions of time were granted to the appellant while this matter was pending before this tribunal. We also note that the claimant has most recently attempted to submit additional evidence on March 7, 2005 (see footnote 4). BACK TO TEXT

2 On November 30, 2002 she returned to Bristol Hospital where a CT scan of her brain was performed. The CT scan did not reveal any abnormalities. BACK TO TEXT

3 Additionally, given the claimant’s status as a pro se we construe the claimant’s letter filed March 29, 2004 as a Motion to Submit Additional Evidence. BACK TO TEXT

4 We also construe this as a Motion to Submit Additional Evidence, however, we note that there is no indication that this correspondence was copied to the respondent. We cannot allow a claimant to have unlimited opportunities to provide additional medical documentation when the claimant did not prevail at the formal proceedings below, to do so would be to allow the claimant to have unlimited bites of the apple. Krajewski v. Atlantic Machine Tool Works, Inc. a/k/a Atlantic Aerospace Textron, 4500 CRB-6-02-3 (March 7, 2003). We will not allow a party to try her case in a piecemeal manner. See Prioli v. State/Connecticut State Library/Arts Commission, 3955 CRB-6-98-12 (January 13, 2000), aff’d, 64 Conn. App. 301 (2001). Thus, the additional evidence having been discoverable at the time of trial and no good reason for the failure to present this evidence at the time of trial having been given, the claimant’s Motion to Submit Additional Evidence is denied. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: March 23, 2005

Page URL: http://wcc.state.ct.us/crb/2005/4788crb.htm

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