State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Lopez v. Lowe’s Home Improvement Center

CASE NO. 4922 CRB-6-05-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 29, 2006

ORLANDO LOPEZ

CLAIMANT-APPELLEE

v.

LOWE’S HOME IMPROVEMENT CENTER

EMPLOYER

and

SPECIALTY RISK SERVICES

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by John Pirina, Esq., Law Offices of Arnaldo Sierra, 215 Washington Street, Hartford, CT 06106.

The respondents were represented by Melissa Murello, Esq., Montstream & May, L.L.P., 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the February 23, 2005 1 Finding and Award of the Commissioner acting for the Sixth District was heard September 23, 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. This case involves three related issues: 1) was the trial commissioner justified in finding the claimant had suffered a permanent partial disability of his neck as a result of a back injury suffered in the course of his employment and 2) was the claimant entitled to an award of benefits under § 31-308a C.G.S. and 3) was the trial commissioner justified in penalizing the respondents attorney’s fees for an unreasonable contest to the claim.

The circumstance of Mr. Lopez’s injury is not in dispute. On June 26, 2003, he injured his lower back while delivering a 400-pound gas grill from the Lowe’s store on the Berlin Turnpike to a purchaser who required the grill be lifted up a series of stairs at his home. Findings, ¶ 3. A First Report of Injury was made immediately after the incident and the claimant took two days off. He returned to work and continued to suffer pain, extending to his neck and arms. Findings, ¶¶ 4 and 5. On August 11, 2003, he was treated by an orthopedic doctor, Dr. Sandor Nagy, who determined the claimant suffered spasms in his cervical spine and referred the claimant to physical therapy. Findings, ¶ 6. The claimant moved from off-site deliveries to working a checkout at Lowe’s, but was still required to lift objects occasionally as part of this “light duty” work. Findings, ¶ 8.

On August 19, 2003, the claimant obtained an MRI of both his cervical and his lumbar spine. The MRI indicated that there was straightening of the spine and disc space narrowing. Findings, ¶ 9. On October 1, 2003, the claimant followed up on a referral from Dr. Nagy and was examined by an orthopedic surgeon, Dr. Mazzara. Dr. Mazzara indicated that one cause of the neck and upper back pain experienced by the claimant was due to efforts made by the claimant to compensate for his earlier lower back injury. Findings, ¶ 10. He decided that the claimant was an appropriate surgical candidate. Dr. Mazzara decided to refer the claimant for an examination by Dr. Kime. Prior to the examination, Dr. Mazzara on December 24, 2003 wrote a note to the claimant advising that he was not cleared to work “until further notice.” Findings, ¶ 11 referring to Claimant’s Exhibit E and November 24, 2004 Transcript, p. 33.

Dr. Kime examined the claimant on December 30, 2003 and advised that he could remain on light duty with a lifting restriction of 15 pounds. Findings, ¶ 12. The claimant’s pain level increased and he stopped going to work. He attempted to procure a doctor’s note from Dr. Kime concerning his absence but none was provided. Findings, ¶¶ 13-14.

Lowe’s demanded that the claimant either report to work or provide a doctor’s note. The claimant did neither. Lowe’s now claims that the claimant failed to comply with their attendance policies and was deemed terminated. The claimant considers this a “Catch-22” as he would need a doctor’s note for his prior absences and does not believe he could return to work without one, and cannot produce such a note. Findings, ¶ 15.2

The claimant was examined again by Dr. Kime on March 30, 2004 who determined the claimant had reached a point of maximum medical improvement with a six percent permanent partial impairment of the cervical spine and an eight percent impairment of the lumbar spine. Dr. Kime also noted the claimant had a “poor prognosis for further recovery.”

While the respondents accepted the lower back injury and executed a Voluntary Agreement on September 3, 2004, they vigorously disputed that the neck injury was compensable. They also contested payment of a 31-308a award. Informal hearings before the trial commissioner were held on May 18, 2004, June 17, 2004, July 19, 2004, and October 5, 2004. At the last informal hearing the trial commissioner ordered the payment of a § 31-308a award for benefits. The respondents appealed to this board and we remanded as the mechanism of an informal hearing created no record capable of being reviewed. See Lopez v. Lowe’s Home Improvement Center, 4871 CRB-6-04-10 (November 1, 2004).

Following the formal hearing on November 24, 2004, the trial commissioner issued a Finding and Award on February 23, 2005 determining the neck ailments were due to a compensable injury, Findings, ¶ A, the claimant was entitled to a payment of 31-308a benefits, Findings, ¶ B, and that the respondents had unreasonably contested the issue of the 31-308a order, Findings, ¶ C.

In their appeal, the respondents claim that its Motion to Correct should have been granted and that had it been granted, the trial commissioner’s award of 31-308a benefits, his finding that the neck injury was a compensable injury, and his award of attorney’s fees for unreasonable contest would have been overturned. The respondents must overcome the core principle of appellate jurisprudence that the trial commissioner is the ultimate finder of fact and of the credibility of witnesses. “The power and duty of determining the facts rests with the commissioner, the trier of facts.” Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A2d 339 (1951). He may find a witness to be credible on some issues and credit another witness as more credible on other issues.

To that end, let us examine the three elements of the Finding and Award. The first finding is that the claimant’s neck ailments were due to a compensable injury. This is essentially a finding of fact by the trial commissioner, which we cannot disturb as long as there are facts in the record to support the finding. As medical evidence credited by the commissioner supports him, we uphold this finding.

The reports of Dr. Nagy and Dr. Mazzara are supportive of the commissioner’s findings that the claimant’s neck and shoulder pain are related to his accepted lower back injury. Dr. Mazzara’s October 1, 2003 report is unequivocal, “in an effort to protect his lower back, he uses upper body and shoulders to such an excess that he has reported shoulder pain and discomfort in the trapezial shoulders bilaterally, as well as cervical pain and discomfort.” Dr. Nagy’s August 11, 2003 examination determined he was suffering spasms in the cervical spine due to cervical and trapezial muscular strain. Respondents correctly point out Dr. Kime’s December 30, 2003 report reached a different conclusion as to the cause of the claimant’s neck pain, (finding it due to degenerative causes) but the trial commissioner specifically found the other physicians’ opinions on this issue more credible. Findings, ¶ A. We have held that it is within the discretion of the trial commissioner to accept some, but not all, of a physician’s opinion. Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335-36, 1592 CRB-5-92-12 (April 27, 1995). There is no need for physicians to uniformly agree on causation to uphold a trial commissioner’s finding regarding a compensable injury. See Benlock v. New Haven Terminal, 3034 CRB-4-95-4 (April 25, 1997), aff’d, 48 Conn. App. 250 (1998)(per curiam). (single physician’s opinion as to causation adequate to support finding and award).3

The circumstances behind the award of § 31-308a benefits become a factual thicket in which we must rely on the ability of the trial commissioner to sift through conflicting evidence and reach a conclusion. The present Finding and Award grants 19.92 weeks of benefits commencing October 5, 2004. The award is for “permanent partial” disability to the back. The commissioner left open the possibility of an additional award for disability associated with the neck via both temporary total and temporary partial benefits, Findings, ¶ D.

Section 31-308a states,

“(a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.”

The respondents claim they are not liable for such payments because 1) they terminated the claimant for violating its attendance policies in the winter of 2004 because 2) the claimant was not “willing and able” to work.

The claimant asserts that he was willing and able to work during this period but was precluded from complying with the company’s requirement that a doctor’s note be proffered for his prior absences. The trial commissioner’s award of § 31-308a benefits clearly demonstrates that he accepted the claimant’s position that his failure to return was based on such a bureaucratic barrier to performance.

Respondents place virtually exclusive reliance on the precedent of Levey v. Farrel Corp., 3649 CRB-4-97-7 (July 30, 1998) to justify their defense of this claim. In Levey, the claimant had been terminated for cause and the CRB determined that this relieved the employer of the obligation to pay benefits for permanent partial disability. The Levey opinion did not elucidate why the claimant had been fired. While factual and policy arguments can be advanced against paying compensation benefits to an employee terminated for cause, the opinion cited by respondents is not dispositive of the circumstance where an employee’s medical condition may temporarily impede attendance. Indeed, the actual text of the Levey opinion makes the circumstances of termination not a legal bar to recovery, but an issue for the trial commissioner to consider in deciding whether to award benefits. “Where a claimant is terminated for cause, the trier has the discretion to consider such a dismissal from employment as tantamount to a refusal to perform a suitable light duty position for the purposes of § 31-308a.” Levey, Id. (Emphasis added).

This determination of the claimant’s status as “able and willing” to work is ultimately a question of fact for the trial commissioner and Lowe’s arguments related to termination for nonattendance are relevant but not dispositive. We have previously held “[w]hether a claimant has satisfied these statutory criteria [of § 31-308a C.G.S.] is a factual determination for the trial commissioner. See Shimko v. Ferro Corporation, 40 Conn. App. 409, 412-13 (1996).” Ronzone v. Connecticut Fineblanking Corp., 3522 CRB-4-97-1 (May 15, 1998).

The claimant testified that he did not voluntarily leave the employment of Lowe’s, November 24, 2004 Transcript, p. 45 and was willing and able to work. November 24, 2004 Transcript, pp. 54-55. Dr. Kime’s treatment note of December 30, 2003 cleared the claimant to work with a 15-pound lifting restriction, accompanied with restrictions on standing and bending. Claimant Exhibit H. The trial commissioner obviously found this testimony credible on the question of the claimant’s intent and capacity to engage in remunerative labor during the period in question.

Another question of fact for the trial commissioner is whether suitable work was available at Lowe’s during the time period in question and whether it was actually offered to the claimant. In that regard, the light duty restrictions previously discussed must be considered, as well as the report of Dr. Mark Spencer, an anesthesiologist at St. Francis Hospital who examined the claimant on November 7, 2003 and reported, “the pain is worse with sitting, standing, bending or lying down. Nothing makes the pain go away.”

The trial commissioner had the opportunity to review the totality of the evidence presented concerning the alleged proffer of “light duty” work to the claimant during January 2004. The claimant believed that he would be returned to the cash register job that he had found too painful to perform. November 24, 2004, Transcript, pp. 34-38. He testified that Lowe’s offered to bring him back, but refused to tell him what his job would be. November 24, 2004 Transcript, p. 38. The testimony of the respondents’ witness, Artimis Liotis that Lowe’s could have accommodated the claimant as a telephone operator, November 24, 2004 Transcript, p. 62 could be set aside in its entirety by the commissioner. The respondent chose to present a witness regarding the claimant’s work capacity who was not even employed by Lowe’s during the relevant period in question. Our board upheld a § 31-308a award in a similar scenario in Murray v. Mass Mutual Life Ins. Co., 4590 CRB-1-02-11 (November 20, 2003); (respondents unable to accommodate claimant’s job restrictions).4

The facts herein support a finding similar to the one this board upheld in Ronzone, supra. “It was within the discretion of the trial commissioner to conclude that the claimant sustained his burden of proof that he was ready and willing to perform light duty work, and that he was unable to perform the light duty position offered by the employer.” As a result we uphold the award of § 31-308a benefits.

The trial commissioner awarded the claimant attorney’s fees under § 31-300 C.G.S. based on the finding the respondents unreasonably failed to pay § 31-308a benefits ordered at an informal hearing as compensation for the back injury. We note that our precedent states, “a considerable amount of discretion is necessarily left to the trier to judge whether or not a respondent has reasonably conducted its defense of a particular claim, which may implicate its manner of administering the case generally.” Prescott v. Community Health Center, Inc., 4426 CRB 8-01-8 (August 23, 2002).

The respondents had an opportunity at the Formal Hearing to present witnesses and legal arguments to substantiate their unyielding posture against paying the award. Whether these arguments were credible is essentially an issue for the trial commissioner to determine. “We have repeatedly held that whether to award attorney’s fees and interest for unreasonable delay and/or unreasonable contest pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner.” McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (November 12, 1998). This board’s scope of review is limited to whether the trial commissioner’s decision constituted an abuse of discretion. “An abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided based on improper or irrelevant factors” In re Shaquanna M., 61 Conn. App 592, 603 (2001). The respondents’ reliance on inapposite legal precedent (i.e. Levey, supra) and witnesses lacking actual knowledge regarding the facts in dispute ( i.e. Ms. Liotis) create sufficient evidence in the record to establish the commissioner did not abuse his discretion in this matter.

In reviewing the issue of the denial of respondents’ Motion to Correct, the precedent of Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002) is on point. The trial commissioner is the finder of fact, and is entitled to make assessments of credibility and weight with respect to documentary evidence and the testimony of witnesses, even that which appears to be uncontradicted. Statements that were admitted or undisputed may well have been afforded little or no weight by the trial commissioner.5 Therefore, we find no error in the trial commissioner’s denial of the Motion to Correct.

We therefore uphold the trial commissioner’s decision on all issues. Insofar as any benefits may have remained unpaid pending the outcome of this appeal, interest is awarded as required by § 31-301c(b) C.G.S.

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

1 We note an extension of time was filed and granted during the pendency of this appeal. BACK TO TEXT

2 Claimant states he was willing and able to return to Lowe’s and perform light duty work had they not created an obstacle of requiring a doctor’s note for the lost time. A review of the lifting restrictions imposed on the claimant creates a serious issue as to whether his prior “light duty” work as a checkout clerk at a hardware warehouse would be feasible. Respondents claim that he could have returned to Lowe’s and worked as a telephone operator. The record does not provide evidence this position was proffered to the claimant in the winter of 2004, rather the record discusses efforts by Lowe’s to bring him back to an unspecified position. BACK TO TEXT

3 As long as a doctor avers his opinion within a reasonable degree of medical probability (based upon the substance of the opinion, rather than the presence of a particular word or phrase), it may serve as the foundation for a trial commissioner’s finding. Struckman v. Burns, 205 Conn. 542, 555-56 (1987). BACK TO TEXT

4 The respondents represent work as a telephone operator was available to the claimant but the medical reports associating sitting with additional pain create a question of fact the respondents do not address as to whether even this light duty work was feasible. If such work was not feasible, the respondents’ reliance on Levey, supra, is inapposite, as they have not suggested that any other work was available to the claimant. While respondents claim in their Motion to Correct that they were prepared to accommodate the claimant, the trial commissioner obviously did not find this statement credible. BACK TO TEXT

5 As previously noted, the respondents’ sole witness at the Formal hearing did not work for Lowe’s during any period relevant to this dispute and her testimony accordingly was given little credence. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: April 7, 2006

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