State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Bennett v. Wal-Mart Stores

CASE NO. 4939 CRB-7-05-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 15, 2006

BARBARA BENNETT

CLAIMANT-APPELLEE

v.

WAL-MART STORES

EMPLOYER

and

CLAIMS MANAGEMENT CORPORATION, INCORPORATED

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Barry S. Moller, Esq., Cramer & Anderson, LLP, Law Offices, 46 West Street, P.O. Box 278, Litchfield, CT 06759.

The respondents were represented by Nicholas C. Varunes, Esq., Kenny, Brimmer & Mahoney, LLC, 20-30 Beaver Road, Suite 103, Wethersfield, CT 06109.

This Petition for Review from the April 21, 20051 Finding & Award of the Commissioner acting for the Seventh District was heard November 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and the Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The appellant, Wal-Mart Stores, appeals from a Finding and Award dated April 21, 2005, as corrected May 17, 2005 from the Commissioner acting for the Seventh District, which denied a temporary total disability award but granted a temporary partial disability award to the claimant, Barbara Bennett. Wal-Mart challenges the decision to grant temporary partial disability benefits without evidence the claimant was performing a job search, asserts the commissioner in effect ordered temporary total disability benefits on an erroneous finding that no suitable light duty positions were made available, and further asserts the trial commissioner made an award for temporary partial disability without providing the respondents adequate notice this issue would be considered at the formal hearing.

Upon review of the facts and relevant legal precedent, we uphold the trial commissioner’s findings regarding temporary total disability. We find the respondents’ concerns regarding the temporary partial award well founded, and herein remand this matter for further proceedings on that issue.

The facts are as follows. Wal-Mart hired the claimant when it opened its new store in New Milford in October 2002. Findings, ¶ 2. She worked as a cashier on the 9:00 a.m. to 3:00 p.m. shift. Findings, ¶ 3. On January 1, 2003, the store was open for business but the staff was shorthanded. Findings, ¶ 4. Approximately 1:00 p.m. that day, a couple interested in buying a new refrigerator asked the claimant to move the box the refrigerator was in so they could find the price tag. Findings, ¶¶ 5-6. The refrigerator weighed about 100 pounds and was on a waist high shelf. As the claimant was attempting to move the box and write down a code number the box fell over the shelf towards the claimant. At that point, the claimant was on her toes and the box bent her backwards before hitting the floor. Findings, ¶¶ 7-9.

The claimant returned to work at the checkout but about twenty minutes later her back began to ache. Findings, ¶¶ 10-11. She reported this to a co-worker, and by 2:00 p.m., the pain was so serious the store’s human resource manager directed her to go to the Corporate Health Care facility in Danbury, where on January 2, 2003 the claimant was prescribed pain medication. She returned to Wal-Mart in a light duty capacity in early January 2003. Findings, ¶¶ 12-13.2

The claimant was prescribed physical therapy at Corporate Health, and attended a number of sessions, but found herself unable to continue the regimen. Findings, ¶¶ 14-15. Dr. Ruth Light of Corporate Health ordered an MRI on the claimant, and she was also treated by an orthopedic surgeon, Dr. Michael Craig, commencing February 24, 2003. Findings, ¶¶ 16-17. Dr. Craig found the claimant had suffered a compensable injury to her thoracic spine, and placed her on limited duty on March 17, 2003. He also suggested the claimant consult a neurosurgeon. Findings, ¶¶ 17-21, Claimant’s Exhibit L. During the spring of 2003, Dr. Craig continued to find a light duty work capacity for the claimant, but she did not agree with the assessment. Findings, ¶¶ 20, 22. Claimant’s Exhibit I.3

On May 12, 2003, Dr. S.J. Shahid, a neurosurgeon, examined the claimant. He recommended exercise and swimming and said, “I would consider returning her to light duty work.” Findings, ¶ 23. The respondents had an independent medical examination done by Dr. Karnasiewicz on October 31, 2003. Dr. Karnasiewicz confirmed that her injury of January 1, 2003 played a “substantial role in her current disability,” but also determined she had the capacity to work an eight hour day, provided she was permitted to change her position from standing to sitting on a frequent basis, did not sit or stand for more than one hour at a time, and had a 20 pound lifting restriction. Findings, ¶¶ 24-25.

The claimant continued to treat for her injuries. One of her treating physicians, Dr. Daniel George, reached an entirely different conclusion than Dr. Karnasiewicz. In a deposition dated February 25, 2004, he concluded the claimant was totally disabled due to her injury of January 1, 2003. His opinion was unless the claimant completed a program of pain management that she was totally disabled. Claimant Exhibit N, pp. 39-41.

A Formal Hearing regarding this claim commenced August 16, 2004, continued to November 10, 2004 and December 23, 2004. The hearing notice put the parties on notice that a number of issues would be addressed, including total incapacity benefits due under § 31-307 C.G.S. The hearing notice did not reference any claim for partial incapacity benefits.

Following the Finding and Award, respondents filed a Motion to Correct, which was granted in part and denied in part. Among the denied corrections were proposed findings that the claimant should be denied temporary partial disability benefits because she had a light duty work capacity during the time period in question, such work was offered to the claimant, and she did not perform this work.

In reviewing the Finding and Award this board must provide substantial deference to the trial commissioner, particularly in regards to his assessment of the evidence offered by both parties at the Formal Hearing. “The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Boccanfuso v. Conner, 89 Conn. App. 260, 292 (2005), cert. denied, 275 Conn. 905, (2005).

A review of the Finding and Award indicates that the trier rejected the claimant’s position she was totally disabled for all relevant periods by crediting the testimony of Dr. Karnasiewicz “as the most persuasive of any of the physicians involved.” This conclusion is clearly supported by competent medical evidence and is upheld by this board. The respondents then appear to argue that by adopting the medical opinions of their physician regarding total disability benefits, the trial commissioner also was bound to accept their legal theories as to the claimant’s right to temporary partial disability benefits. This linkage is unsupported by the law.

Dr. Karnasiewicz’s testimony indicates that he placed significant work restrictions on the claimant. Whether the respondents actually had a position available that the claimant could perform is a factual question for the trial commissioner to determine. We have previously held “[w]hether a claimant has satisfied these statutory criteria [of § 31-308(a) C.G.S.] is a factual determination for the trial commissioner. See Shimko v. Ferro Corp., 40 Conn. App. 409, 412-13 (1996).” Ronzone v. Connecticut Fineblanking Corp. 3522 CRB-4-97-1 (May 15, 1998). There would be no inconsistency with the trial commissioner crediting Dr. Karnasiewicz’ medical opinions and then determining that Wal-Mart failed to provide the claimant with a position the commissioner believed she could perform.

The claimant’s brief indicates the claimant had been employed as a greeter at the Wal-Mart prior to her filing for medical leave under the Family and Medical Leave Act. The respondents cite in their Reasons for Appeal their claim the trial commissioner erred by not adopting their corrections to the record that light duty positions suitable for the claimant were offered but not accepted. The trial commissioner’s Findings, ¶ F does not directly address this issue in that it states that the claimant was “unable” to go to work “per the direction of her physician.”

The hearing transcript does reference a representation by Wal-Mart that light duty work was available to the claimant and they believed she could perform it within her restrictions. Nonetheless, this board may make an inference from the trial commissioner’s denial of certain elements of the Motion to Correct. We may infer the trial commissioner either rejected the respondents’ claim that they had offered suitable light duty work to the claimant that she did not perform or we may infer the commissioner determined the claimant could not perform what work Wal-Mart did proffer. While we may not disturb such a factual finding on appeal, the commissioner did not outline how he reached such a determination.

In Sellers v. Sellers Garage, 80 Conn. App. 15 (2003), the Appellate Court outlined the standard for awarding a full partial disability award, “[t]o receive full compensation for partial disability under § 31-308(a), a plaintiff must satisfy the following three-pronged test: (1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available . . . .” (Internal quotation marks omitted.) Mikula v. First National Supermarkets, Inc., 60 Conn. App. 592, 598, ( 2000), Sellers, supra, 20-21. While an inferential conclusion can be drawn from crediting Dr. Karnasiewicz’s opinions the claimant was “able” to work, the relevant finding, Findings, ¶ F does not find she was “willing” to work or that no suitable work was available.4

The claimant cites Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998) for the proposition a claimant may have a theoretical light duty capacity but find oneself unmarketable in the labor force due to one’s limitations. This precedent is not dispositive. First, Hidvegi, was a case where the commissioner found total disability. Secondly, the record herein is bereft of the factual findings cited by the board in upholding Hidvegi. “The commissioner also found that the claimant had no readily transferable skills and those factors rendered her labor unmarketable when combined with the physical restrictions resulting from her injuries.” Id.

Essentially given the other facts found by the commissioner, an order of § 31-308(a) benefits required the trial commissioner to find the claimant was willing to work, but would have found no suitable work had she searched. Our decision in Richardson v. Bic Corporation, 4413 CRB-3-01-7 (August 5, 2002) is dispositive of this issue “[f]or the claimant to collect benefits under § 31-308(a), she was required to show she was ‘ready and willing’ to perform work within her restrictions.” See also Dzamko v. Danbury, 4588 CRB-7-02-11 (November 26, 2003). While this board is obligated to defer to facts found by the trial commissioner, the record herein is simply inadequate to make such an inference regarding this issue on appeal. “The law demands that these matters be resolved before benefits can be awarded under § 31-308(a).” Richardson, supra.5

The respondents also claim they were prejudiced by the fact that temporary partial benefits were ordered by the trial commissioner following a hearing on the claimant’s demand for temporary total disability benefits. They cite Palm v. Yale University, 3923 CRB-3-98-10 (January 7, 2000) for the proposition that a trial commissioner must provide adequate notice to the parties as to what forms of relief may be ordered at the hearing so as to allow the parties to adequately defend their interests. After reviewing the actual hearing notices, none of which provided notice that § 31-308(a) benefits were under consideration, and the legal precedent, we believe respondents present legitimate arguments that this situation did not follow our established precedent.

The facts of the Palm case are quite similar to the present case. In Palm, the trial commissioner ordered 31-308(a) benefits after a hearing where the claimant had only sought temporary total disability benefits and the CRB decided “we conclude the parties were not afforded sufficient notice that the issue of temporary partial benefits under § 31-308(a) would be decided.”6

The claimant argues the respondents should have been aware at the hearing that partial disability might be considered. The record however shows the only issue presented to the trial commissioner at the hearing was that of temporary total disability. See August 16, 2004 Transcript, pp. 5-8, and Claimant’s Proposed Finding and Award.

For the reasons stated herein, 1) the need for specific findings in the record documenting the claimant’s entitlement to § 31-308(a) benefits as outlined in Sellers, supra and Richardson, supra and 2) the need to provide the parties with adequate notice as to the issues at stake prior to a hearing, this board remands the issue of § 31-308(a) benefits to the trial commissioner for further proceedings.

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

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

2 Claimant’s Exhibit A is a handwritten narrative of the injury dated 2:20 p.m., January 1, 2003, which constitutes First Notice of Injury. BACK TO TEXT

3 The claimant stopped working at Wal-Mart on or about May 7, 2003. See paragraphs 2-29 of the respondents’ Motion to Correct, granted by the trial commissioner. BACK TO TEXT

4 Respondents make a significant issue of the claimant’s failure to perform job searches during her period of disability. This does reflect on the statutory requirement the claimant be “willing” to work to qualify for § 31-308(a) benefits, but respondents overlook the central point that this is a factual issue for the trial commissioner to determine. There is no requirement under the law that a claimant perform a job search to qualify for § 31-308(a) benefits. See Dzamko v. Danbury, 4588 CRB-7-02-11 (November 26, 2003), “proof of work search is just one evidentiary basis to demonstrate willingness to work and the availability of suitable light duty employment,” as “it is within a fact-finder’s prerogative to assess a claimant’s potential likelihood for employment.” Id. BACK TO TEXT

5 The record in Hidvegi, supra included testimony from a vocational specialist. There is no similar testimony in this case. Rather, claimant’s evidence was the pain rendered the claimant fully disabled. Having accepted the alternative conclusion the claimant had a work capacity, evidence akin that presented in Hidvegi, needs to be placed on the record by the trial commissioner regarding the claimant’s work capacity and outlining the unsuitability of the proffered work. See Dzamko, supra, “the trial commissioner found that respondent, the City of Danbury had no light duty or sedentary work for its police officers, Findings, ¶ D.” BACK TO TEXT

6 Claimant attempts to distinguish Palm on the basis that case centered on whether to accept a Form 36, but fails to cite any legal precedent to explain why that is not a distinction without a difference as related to the due process implications of omitting any reference to partial benefits in the hearing notice. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: May 19, 2006

Page URL: http://wcc.state.ct.us/crb/2006/4939crb.htm

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