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Parker v. Manafort Brothers, Inc.

CASE NO. 4857 CRB-7-04-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 19, 2005

EUGENE PARKER

CLAIMANT-APPELLEE

v.

MANAFORT BROTHERS, INC.

EMPLOYER

and

AIG CLAIM SERVICES, INC.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Christopher DePalma, Esq., Kennedy, Johnson, D’Elia & Gillooly, L.L.C., 555 Long Wharf Drive, 13th Floor, New Haven, CT 06511.

The respondents were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the August 23, 2004 Finding & Award of the Commissioner acting for the Seventh District was heard on March 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Manafort Brothers, Inc. and AIG Claim Services, Inc., have appealed from the August 23, 2004 Finding and Award of the Commissioner acting for the Seventh District.1 We affirm the decision of the trial commissioner.

The following pertinent facts were found by the trial commissioner. In 1997 the claimant sustained a compensable injury to his right elbow while working for the respondent-employer. He underwent surgery to repair his right elbow and immediately thereafter experienced a significant complaint of right shoulder pain. He was not treated for the pain at that time nor was any pain treatment recommended. After the surgery the claimant worked periodically for the respondent-employer. Wage records in evidence indicated that he worked for the respondent specifically from October 2000 through January 16, 2001; from October 20, 2001 through December 23, 2001; and again from January 5, 2002 through February 9, 2002. During these periods the claimant performed the usual tasks of a mason for a substantial part his work days. These tasks consisted of using “an electric chipping hammer for extensive periods of time to remove ‘bumps’ of concrete from concrete walls,” using a “diamond wheel electric grinder to smooth concrete walls,” and using “a bull float, a straight edge and a sponge float.” Findings, ¶ 9.

In January 2002 the claimant’s right arm “gave out” and as a result he had little strength in that hand and arm. Findings, ¶ 10. The claimant continued to work two to three days after initially experiencing this condition. On January 24, 2002 the claimant sought medical treatment from Dr. Robert W. Geist, an orthopedic surgeon who initially diagnosed the claimant with a Type III acromion deformity with a calcium build up at the end of the distal clavicle. Dr. Geist suggested that the claimant undergo an arthroscopy with acromioplasty and distal clavicle excision. An MRI was performed to confirm Dr. Geist’s diagnosis. The MRI revealed advanced degenerative changes and a possible tear of the rotator cuff with bursitis of the shoulder, and showed fluid in the sub deltoid subacromial bursa, which also indicated a tear in the rotator cuff. After reviewing the MRI results Dr. Geist again recommended that the claimant undergo surgery.

Dr. Geist opined that the claimant’s shoulder condition worsened from 1997 through 2002 due to repetitive lifting, reaching, and manual use of his arm. Dr. Jeffrey B. Steckler, an orthopedic surgeon examined the claimant in 2002 as an Independent Medical Examiner and agreed that the claimant required the surgical procedure that Dr. Geist had recommended. Dr. Steckler opined that the claimant’s condition was brought about by the ordinary tasks of everyday living as opposed to any heavy lifting or arm movements that the claimant’s job required him to do. However, Dr. Steckler testified at a deposition that, “[t]he causation is his--the degeneration, and the causation-the actual activity precipitates the disease. In other words, the disease is present already, and stressing that disease will cause the disability.” Findings, ¶ 23, citing Dr. Steckler’s deposition, p. 43.

The commissioner found that the claimant suffered from a compensable repetitive type trauma to his right shoulder while in the employ of the respondent-employer between October 20, 2001 and February 9, 2002. The trier specifically found, “Dr. Geist’s opinion as to causation is persuasive and that of Dr. Steckler indicates an employee with a degenerative disease which is ‘lighted up’ by repetitive use of his right arm.” Findings, ¶ 2. He further stated, “[a]n employer takes his employee as he finds him and is responsible for the consequences.” Id. The trial commissioner determined the claimant had a restricted work capacity and, as a result, a decreased earning capacity. Therefore, the commissioner ordered the respondent to pay for the recommended surgery and to pay the claimant temporary partial disability benefits for the periods November 25, 2002 through October 11, 2003, based upon a wage differential.

The respondents have appealed the Finding and Award contending that the trier erred in failing to address the issue of “whether the claimant attributed work activities with the respondents as causing his shoulder condition.” Respondents’ Reasons of Appeal. The respondents’ primary contention on appeal is that the trial commissioner failed to find certain facts which were material to the compensability determination.

This board’s role as an appellate body is limited to examining the trial commissioner’s findings and conclusions to determine whether they are without evidentiary support, contrary to the law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). As a trier of fact the trial commissioner is entitled to make credibility determinations. Id.; Schenkel v. Richard Chevrolet, 4639 CRB-8-03-3 (March 12, 2004). Similarly, the trier has the prerogative to decide the weight of the evidence presented. Bernardo v. Capri Bakery, 4570-CRB-3-02-9 (February 10, 2004). The trial commissioner is only required to include “. . . the ultimate relevant and material facts essential to the case in hand. . . .” Admin. Reg. § 31-301-3. The trier is allowed to omit evidence or evidential facts from his findings which do not affect the outcome of his determinations. Alling v. Davis & Geck, 4483 CRB-7-02-1 (December 20, 2002) citing Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002).

In the respondents’ view the trier should have made findings regarding the testimony of the claimant’s supervisor, Beresford “Smitty” Harvey, and the project superintendent, Craig Pratt. Both of these gentlemen testified that the claimant said his shoulder injury and need for surgery were from a pre-existing injury which was not work related. December 1, 2003 Transcript, pp. 89, 104; February 9, 2004 Transcript, p. 8. In the respondents’ view, the trier’s failure to address this testimony in his findings equates to error in the trial commissioner’s findings and award. We disagree. The claimant admitted he had told his co-workers that he thought his need for surgery was related to a prior injury that was not work-related. However, the claimant explained that these statements were made before he understood that this was actually a new injury. December 1, 2003 Transcript, p. 52. The trier could have reasonably believed that when the claimant made these statements to his co-workers he did not understand the medical origin of his injury. The trier ultimately credited Dr. Geist’s opinion that the claimant’s shoulder injury was attributable to his repetitive work as a mason while working for the respondent-employer. Findings, ¶¶ 1, 2.

The respondents assert that the co-workers’ testimony is material in light of Dr. Geist’s deposition testimony regarding the cause of the claimant’s shoulder condition. The respondents’ attorney asked Dr. Geist to hypothesize that the claimant’s work activities did not affect his shoulder, based on Mr. Parker’s testimony. Dr. Geist responded as follows:

Hypothetically speaking, if I were presented with the history that the job that he was doing was not causing him any shoulder pain, then I would think that the job that he was doing was probably not aggravating his shoulder, if not worsening the condition. Claimant’s Exhibit F, January 15, 2004 Deposition of Dr. Robert W. Geist, p. 52.

However, this hypothetical does not appear to reflect the facts found by the trial commissioner. The trier was free to credit the claimant’s testimony that he actually did have significant shoulder pain in January 2002 while performing work activities. Findings, ¶ 10.

We also note that, although a trier may accept a claimant’s recounting of the circumstances of an injury to find compensability in cases where an injury can be proven through knowledge of “ordinary human experience,” medical evidence is needed in cases of more complex causation. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449 (2001); Walker v. Hartford, 4605 CRB-1-03-1 (December 30, 2003); Burke v. Shaw’s Supermarkets, Inc., 4503 CRB-6-02-3 (August 25, 2003), appeal dismissed, A.C. 24693 (February 17, 2004); Garofalo v. Jarvis Products Corp., 4249 CRB-8-00-6 (September 12, 2001). In this case, the trier could reasonably have inferred that the claimant’s initial lay-person’s assessment of the origin of his injury was incorrect and that the issue of causation was complex, requiring him to look to the medical opinions in the record to establish causation. There is no mandate to bind a claimant to a self-diagnosis which medical evidence later reveals to be erroneous. Dr. Geist specifically stated that the claimant’s work as a heavy laborer was the cause of his shoulder condition. Claimant’s Exhibit F, January 15, 2004 Deposition, p. 48. This is the medical opinion the trial commissioner’s findings were based on. The trier’s reliance on Dr. Geist’s medical opinion was reasonable. Therefore, any witness testimony regarding the claimant’s own assessment of causation has been rendered immaterial.

For these reasons, we affirm the trial commissioner’s findings.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

1 We note that an extension of time was granted during the course of the appellate process. BACK TO TEXT

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