CASE NO. 5074 CRB-6-06-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 28, 2007
MAURA T. DONAHUE
ONEBEACON INSURANCE COMPANY
The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, P.C., 96 Webster Street, Hartford, CT 06114.
The respondents were represented by Dominick Statile, Esq., Montstream & May, LLP, Salmon Brook Corporate Park, 655 Winding Brook Drive, Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review of the March 22, 2006 Finding and Award/Dismissal of the Commissioner acting for the Sixth District was heard September 22, 2006 before a Compensation Review Board panel consisting of Commissioners Donald H. Doyle, Jr., Stephen B. Delaney and Howard H. Belkin.
DONALD H. DOYLE, JR., COMMISSIONER. In the instant case the claimant had a Motion to Preclude granted establishing she sustained a compensable injury. However, the trial commissioner concluded the treatment she sought from the respondent was unrelated to the compensable injury, and denied her claim for benefits. We believe this was a factual matter for the trial commissioner to determine and pursuant to our precedent in Tucker v. Connecticut Winpump, 4492 CRB-5-02-2 (February 21, 2003) we believe the trial commissioner had the discretion to reach the decision she reached in this matter. Accordingly, we uphold the trial commissioner and dismiss the appeal.
The Commissioner acting for the Sixth District reached the following findings of fact following a formal hearing, which commenced on October 21, 2005 with the record being closed on December 19, 2005. She found the claimant had commenced employment with the respondent as a computer sales representative on January 3, 2002. On January 17, 2002 she went to the firm’s office in Maynard, Massachusetts to have her computer fixed when she said she fell down at their office. She did not fill out a formal report of the accident but testified she had spoken to other Veridiem employees in regards to falling at their office. She was not sore immediately after the fall but testified she was sore the next day and she had a large bruise. She said she had not experienced back problems prior to January 17, 2002 and she said she did not start to really experience such problems until a month after the accident.
The claimant treated with her general practitioner, Dr. Ronald J. Buonomano, for complaints of fatigue and muscle soreness. Dr. Buonomano referred her to Dr. Stocker, a rheumatologist. Dr. Buonomano’s notes for February, March and April 2002 do not reference a work accident and the claimant testified she did not inform him of a back problem. On July 26, 2002 the claimant had an MRI performed which showed disc protrusions at multiple levels.
Following the MRI the claimant began treating with a neurosurgeon, Dr. Arnold J. Rossi. She later began treating with another neurosurgeon, Dr. Inam U. Kureshi of the same practice. On December 2, 2002 Dr. Kureshi performed a L4-L5 discectomy. Prior to that operation, on November 27, 2002 a report from Hartford Hospital indicated the claimant identified the right low back pain as starting in July 2002, and does not identify a work related injury.
The claimant said she had briefly treated with a chiropractor, Dr. David S. Schiller, for her 2002 back problems. She had consulted him previously in regards to the mechanics of her golf swing. She denied having back problems prior to January 17, 2002 and specifically denied having fallen on or about December 31, 2001.
The commissioner found that the claimant had filed her Form 30C on January 16, 2003, one day before the statute of limitations for the alleged injury would have expired. The Commission did not receive a copy of the respondents’ Form 43 until February 24, 2003. As a result the commissioner concluded the claimant had filed her claim in a timely manner but the respondents’ disclaimer was belated; therefore she granted the claimant’s Motion to Preclude.
The trial commissioner did evaluate the medical evidence provided by the claimant, including a December 16, 2005 medical report from Dr. Kureshi which the respondents objected to as untimely.1 In considering this evidence the trial commissioner concluded the claimant’s testimony linking the extent of her back disability to the January 17, 2002 fall was not credible; consequently she discounted medical evidence which appeared to be derivative of the claimant’s narrative. Therefore, the trial commissioner determined that the January 17, 2002 fall was compensable but denied the claimant’s claim for medical treatment and back surgery. She also denied the claim for permanent partial disability.
The claimant’s legal argument is based on a single argument: that the Appellate Court’s holding in DeAlmeida v. M.C.M. Stamping Corporation, 29 Conn. App. 441, 444 (1992) mandates that the trial commissioner should have ordered the respondents to pay to the claimant “the benefits under Chapter 568 C.G.S. to which [s]he now is and may hereafter become entitled.” We find this argument unpersuasive for two reasons. First, the statute relied on in DeAlmeida § 31-294c(b) C.G.S. has been amended to specifically permit a respondent to challenge the extent of disability. See Public Act 93-228 § 8.2 Additionally, we believe the burden has always been on the claimant to establish her disability is linked to the compensable injury. See Adzima v. UAC/Norden Division, 177 Conn. 107, 113 (1979) where our Supreme Court pointed out, “the statute itself clearly delineates a distinction between liability and disability . . . .”
Since the enactment of Public Act 93-228 § 8 this board has had two occasions to consider whether a trial commissioner, finding the claimant’s evidence unpersuasive, has the discretion to deny a claim for benefits after preclusion had been ordered under § 31-294c(b) C.G.S . In both occasions we upheld the trial commissioner. In Tucker, supra, we determined, “there is a clear distinction in § 31-294c(b) and in our case law between the right to contest liability for an injury, and the right to contest the extent of disability attributable to such an injury.” In Harpaz v. Laidlaw Education Services, 5040 CRB-7-05-12 (December 11, 2006) we concluded “[b]oth factually and legally this case is virtually identical to Tucker, hence stare decisis compels us to reach the same result by upholding the trial commissioner and dismissing the appeal.” We find this case legally indistinguishable from Tucker and Harpaz and we are compelled as well to uphold the trial commissioner.
We note in this case the trial commissioner permitted the claimant to submit medical evidence after the record was originally scheduled to be closed. Despite this accommodation the trial commissioner still did not believe the claimant had established her disability was due to the compensable injury. As a result the rationale of Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000) mandates an affirmance of the trial commissioner. “If the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.” The trial commissioner in this matter reached a similar conclusion as the trial commissioner in Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006): that the claimant’s lapse in time in reporting a back injury to her physicians rendered their subsequent opinions unreliable.3
Counsel for the claimant advanced the argument before this board that the case of Del Toro v. Stamford, 64 Conn. App. 1 (2001), cert. denied, 258 Conn. 913 (2001) mandated reversal of the trial commissioner. We find Del Toro, supra, an unreliable precedent for this premise as it was reversed on appeal by the Supreme Court, “we conclude that compensability, in terms of whether a type of injury falls within the scope of the act, is a jurisdictional fact that would allow an employer to contest liability beyond the time frame allotted by § 31-294c (b).” Del Toro v. Stamford, 270 Conn. 532, 547 (2004). We also note the Supreme Court’s Del Toro opinion noted “issues of causation typically are addressed only after the threshold question of jurisdiction has been established.” Id., 545. Neither the Appellate Court nor the Supreme Court opinions in Del Toro address whether the claimant established a disability from a compensable injury.
The claimant argues her Motion to Correct should have been granted. We note that the Motion to Correct was filed April 7, 2006, which the respondents note was beyond the time frame established in Admin. Reg. § 31-301-4. We believe notwithstanding its alleged untimeliness, the Motion to Correct was properly denied by the trial commissioner as it was based on legal interpretations inconsistent with our precedents and sought to substitute the claimant’s evaluation of the evidence for that of the trial commissioner. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002).
As there is no error, we affirm the trial commissioner’s Finding and Award/Dismissal.
Commissioner Stephen B. Delaney concurs in this opinion.
Commissioner Howard H. Belkin was present at oral argument but did not participate in this decision.
1 The claimant never produced the medical records from Dr. Rossi although her attorney did attempt to obtain them via subpoena on the eve of the formal hearing. BACK TO TEXT
2 Among the changes made to § 31-294c(b) C.G.S. by Public Act 93-228 § 8 was the addition of the following new language “but the employer may contest the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim.” BACK TO TEXT
3 In Abbotts, the claimant also attributed a disc herniation to a work-related accident which he did not discuss with his physician when he commenced treatment. BACK TO TEXT