State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Do v. Danaher Tool Group

CASE NO. 5029 CRB-6-05-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 28, 2006

HUI DO

CLAIMANT-APPELLANT

v.

DANAHER TOOL GROUP

EMPLOYER

and

GAB ROBINS

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by David H. Siegel, Esq. and Jeffrey L. Polinsky, Esq., Polinsky, Santos, Siegel & Polinsky, LLC, 890 West Boulevard, Hartford, CT 06105-4139.

The respondents were presented by Claudia D. Heyman, Esq., 631 Aspen Lane, Suite 101, Orange, CT 06477.

This Petition for Review filed from the December 2, 2005 Finding and Dismissal of the Commissioner acting for the First District was heard June 23, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. In the instant case following a formal hearing, the trial commissioner concluded that the claimant failed to prove that she had sustained a compensable injury and dismissed her claim. The claimant has appealed from this dismissal. Upon a review of the record, we conclude the dismissal was based on a credibility determination which we cannot disturb on appeal.

The claim concerns an injury at work the claimant said she suffered on December 17, 2001. On that date, the claimant was employed as an assembler by Holo-Krome, a division of the respondent, Danaher Tool Group. She testifies that on that date she sustained a back injury while lifting a box. There were no witnesses to the incident, she did not seek immediate medical treatment and she worked her full shift that day and continued to work full shifts until early February 2002. Findings, ¶¶ 1-3. On February 11, 2002, the client was examined by Dr. Manh Nguyen. Dr. Nguyen diagnosed her with low back pain. She did not advise her doctor at that time of an injury sustained at work. Findings, ¶¶ 4-6.

The claimant continued treating with Dr. Nguyen and had a number of tests performed. On March 1, 2002, Dr. Nguyen identified acute lumbrosacral radioculopathy at L4-5 of the claimant’s spine, and prescribed physical therapy. The claim forms for the physical therapy did not represent the treatment was for a work related injury. Claimant’s Exhibit D. On March 8, 2002, the claimant filed for short-term disability benefits based on her back condition. Finding, ¶ 10. The forms she submitted to CIGNA for these benefits represented the injury was not work related. Findings, ¶¶ 8 and 10.

Dr. Nguyen referred the claimant to Peter Wade, M.D. for further examinations. Finding, ¶ 12. A May 7, 2002 report from Dr. Wade indicated the patient said her back pain started “at the beginning of the year” and “there has been no true injury incident in association with this syndrome.” Claimant’s Exhibit C. Dr. Wade recommended an MRI be performed. The MRI revealed ‘degeneration of L4-5 and L5-S1 disks with loss of normal signal” and a “a large right-sided disk extrusion L5-S1 with compression of the existing nerve root.” Claimant’s Exhibit C. Dr. Wade referred the claimant to Dr. David Kruger for a discectomy.

Dr. Krueger performed a discectomy on the claimant on June 14, 2002. Following the date of the surgery, the claimant attributed her back problems to the December 17, 2001 lifting accident. Finding, ¶ 13. The first time the claimant made this statement was in an examination by Dr. Nguyen on July 1, 2002. She said that she had not reported the December 17, 2001 incident for fear that she would lose her job if she reported she was hurt on the job. Finding, ¶ 7. Nonetheless, on July 5, 2002, Dr. Nguyen submitted a claim form to an insurance carrier which attributed the injury to a non-work injury. That same date the claimant filed a Form 30C asserting that her back injury was a compensable work related injury.

A formal hearing on this claim commenced on August 16, 2004 before Commissioner Frankl in the Sixth District and concluded before Commissioner Frankl in the First District on July 18, 2005, with the record closed on October 7, 2005. At the hearing the claimant testified through an interpreter that her injury occurred at work and reiterated that she feared being terminated if she reported the injury. She also testified that she did not know of anyone else at her business being terminated after getting hurt at work. Finding, ¶ 15. She also testified that she had been involved in a number of motor vehicle accidents prior to December 2001. August 16, 2004 Transcript, pp. 43-44; July 18, 2005 Transcript, pp. 19-27.

The trial commissioner issued his Finding and Dismissal on December 2, 2005. He found that the claimant was not a credible witness on the issue of not reporting the December 2001 lifting accident due to fear of being fired. Finding, ¶ A. The trial commissioner specifically found that the claimant had obtained treatment for her back from a number of treaters while telling them the injury was not work related. Finding, ¶ B. As a result, he concluded on the issue of whether the injury was work-related that the claimant had failed to meet her burden of proof, and dismissed the claim. Finding, ¶ E. This appeal ensued thereafter.

The claimant’s appeal is based on one theory. They believe the trial commissioner was obligated to issue an award to the claimant if her testimony and medical evidence was not contradicted by the respondent. They cite Daniels v. Alander, 75 Conn. App. 864 (2003) and Gianetti v. Norwalk Hospital, 266 Conn. 544 (2003) as binding authority for this proposition. A review of these cases finds that they do not compel the result sought by the claimant.

Both Daniels and Gianetti are cases far removed from the realm of compensation law; Daniels being a case concerning attorney discipline and Gianetti being a case regarding a contract for medical services. We also note in both cases the actual holding of the case was that the trier of fact was permitted to disregard uncontradicted evidence. In Daniels, the Appellate Court considered the argument presented and concluded therein, “[s]uch concerns are not implicated here. In the present case, ample circumstantial evidence supports the court’s findings.” Id., 875-876. In Gianetti, the Supreme Court held, “we conclude that the limited evidence in the record . . . is neither uncontroverted nor sufficiently clear as to warrant the conclusion that the plaintiff is a lost volume seller as a matter of law.” Supra, 561.

We believe the Supreme Court expressed the appropriate legal standard when it considered the Appellate Court’s decision on appeal in Daniels. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004) citing Burton v. Mottolese, 267 Conn. 1, 54 (2003).

There is a substantial body of law concerning Workers’ Compensation in Connecticut supporting the authority of a trial commissioner to disregard evidence which he does not believe or does not find probative. In Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999) the Appellate Court held, “[t]he trier may accept or reject, in whole or in part, the testimony of an expert.” We have discussed the discretion of a trial commissioner to disregard evidence in a number of our cases. “This factfinding discretion entitles the trier to credit all, part or none of any doctor’s testimony, and to reject evidence that superficially appears to be uncontradicted.” Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). “Inconsistencies in the evidence must be resolved by the trier, and she may give credit to all, part or none of the testimony given by a lay or expert witness, while also retaining the authority to reject evidence that superficially may appear to be uncontradicted.” Gagliardi v. Eagle Group, Inc., 4496 CRB 2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam).

When one adds the aforementioned burden of persuasion on the claimant, as stated in Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440, 447 (2001) the rationale of Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000) governs our decision. There we held, “[i]f the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.” We shall review the evidence herein to ascertain why the trial commissioner was not persuaded.

The trial commissioner specifically identified evidence from three witnesses which he found either inconsistent or not credible, the claimant, Dr. Nguyen and Dr. Wade. While the claimant’s attorney claims this evidence was uncontradicted, the trial commissioner specifically identified inconsistencies in his Finding and Dismissal. Dr. Nguyen submitted a form to CIGNA which did not identify the injury as work related. Finding, ¶ 8. Dr. Wade prepared a report that indicated no injury had occurred. Finding, ¶ 12. In fact, the MRI submitted as evidence described the disc ailments as “degenerative.94" Claimant’s Exhibit C. The trial commissioner also specifically found the claimant’s testimony she did not report the injury as work related due to fear of termination not to be credible. Findings, ¶¶ A-B.1

In Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) we reiterated the maxim “the trial commissioner is the sole person empowered to evaluate a witness’s credibility” and cited this portion of the Supreme Court’s opinion in Burton, supra.

Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.” Burton, supra, 40.

To the extent that Dr. Nguyen and Dr. Wade offered evidence linking causation of the injury to the workplace, it appears to have been derivative of the claimant’s narrative. In Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006) we upheld the decision of the trial commissioner to reject medical evidence for similar reasons.

It is properly within the commissioner’s discretion to accept or reject all, or part of, a medical opinion. Misenti v. International Silver Co., 215 Conn. 206, 209-10, 575 A.2d 690 (1990); Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 57, 782 A.2d 141, cert. denied, 258 Conn. 930, 783 A.2d 1029 (2001); Keenan v. Union Camp Corp., 49 Conn. App. 280, 286, 714 A.2d 60 (1998). (Emphasis added) Safford v. Owens Brockway, 262 Conn. 526, 536 (2003). Id.

The record herein also included the claimant’s testimony at the formal hearing that she had been involved in two motor vehicle accidents in the 1990’s. Her testimony included references to the accidents causing back injuries. August 16, 2004 Transcript, pp. 43-44; July 18, 2005 Transcript, pp. 19-27. Consequently, while the respondents did not present any medical testimony it is inaccurate to represent that the trial commissioner could not have considered an alternative explanation for the claimant’s present back condition. In any event, as we made clear in Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006) the paramount consideration for a trial commissioner is the persuasiveness of evidence, not its quantity.2 In this case, the trial commissioner simply was not persuaded by the claimant’s arguments.

Since the claimant failed in her burden of persuasion to the trial commissioner, we have no alternative than to uphold the commissioner’s decision and dismiss this appeal.

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur in this opinion.

1 Counsel for the claimant correctly points out that the Form 30C for this injury was filed well within the statutory period to commence a claim for Chapter 568 benefits. The failure to file a first report of injury is a relevant issue for the trier of fact to consider in the absence of witnesses to the accident, especially as it impacts the ability of the respondents to investigate the claim. Compare this case with Collazo v. Microboard Processing, 4912 CRB-4-05-1 (January 19, 2006) where a first report of injury was filed promptly after a fall down and a delay of five months in filing a Form 30C became a “weight of the evidence” issue resolved in the claimant’s favor. Here, the trial commissioner resolved the issue in the respondent’s favor. BACK TO TEXT

2 The claimant argues that the testimony of her daughters at the formal hearing that she had suffered back pain contemporaneous with the alleged December 17, 2001 injury renders the trial commissioner’s decision subject to reversal as clearly erroneous. We disagree. If a finder of fact does not find corroborating testimony persuasive enough to overcome credibility concerns regarding the claimant, we cannot reach a different conclusion as an appellate panel. BACK TO TEXT

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