State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Rizzo v. Stanley Works Hand Tools Division

CASE NO. 5106 CRB-6-06-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 21, 2007

VIRGINIA RIZZO

CLAIMANT-APPELLANT

v.

STANLEY WORKS HAND TOOLS DIVISION

and

SPECIALTY RISK SERVICES

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Angelo Cicchiello, Esq., Law Offices of Angelo Cicchiello, 364 Franklin Avenue, Hartford, CT 06114.

The respondents were represented by Richard S. Bartlett, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the June 13, 2006 Finding & Award/Finding & Dismissal was heard July 13, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal is focused on whether the trial commissioner should have granted a Motion to Correct following his original issuance of the Finding and Award. The substantive effect of this decision was to move back the claimant’s date of maximum medical improvement by approximately one year and to ratify a Form 36 approved by a prior trial commissioner at an informal hearing. The claimant argues that the trial commissioner erred in approving the Motion to Correct. Our review indicates this was a matter within his discretion and there was sufficient evidence on the record to support the requested corrections. As a result, we uphold the trial commissioner and dismiss this appeal.

The genesis of this controversy was an August 26, 2003 fall down injury the claimant sustained at the respondent’s workplace. She filed a Form 30C seeking compensation for her injuries. The respondents have acknowledged the claimant’s shoulder and neck injuries are compensable, but there is a dispute as to compensability of the claimant’s lower back ailments, the claimant’s entitlement to temporary total and temporary partial benefits, as well as her entitlement to additional medical treatment. A Form 36 was approved in this case effective September 16, 2004. The approval of this Form 36 was among the issues considered at the formal hearing which commenced March 13, 2006, continued to April 19, 2006 with the record closing June 1, 2006. On June 13, 2006 the commissioner acting for the Sixth District issued a Finding & Award/Finding & Dismissal. The trial commissioner noted there was a dispute as to the claimant’s date of maximum medical improvement, with the respondent asserting an MMI date of August 2, 2004 and the claimant asserting an MMI date of July 8, 2005.

The trial commissioner determined that Dr. Carangelo (one of the claimant’s treating physicians) had opined as to MMI in his report of July 8, 2005. Findings, ¶ 12. He found Dr. Pepperman (another treating physician) said in a deposition dated January 20, 2005 the claimant was at MMI/PPD as to claimant’s cervical and lumbar spine, not as to the left shoulder. Findings, ¶ 14. He found Dr. Schildgen (an orthopedic doctor who examined the claimant at the respondent’s request) said in a report dated November 7, 2004 that the claimant suffered injury to the cervical spine, lumbar spine and left knee. Findings, ¶ 16. Based on these subordinate facts he determined in part,

E. I find the claimant credible as to her claim of temporary partial benefits and temporary total benefits from September 19, 2004 – February 3, 2005 and February 4, 2005 – July 7, 2005 respectfully.
F. I find Dr. Carangelo credible as to his position that the claimant was light duty from September 19, 2004 – February 3, 2005 and temporary totally disabled from February 4, 2005 – July 7, 2005.
G. I therefore overrule and deny the 36 approved on September 19, 2004 and award the claimant said benefits accordingly.
H. I find that based on the totality of evidence (doctor’s opinions, claimant’s testimony, Mr. Rizzo’s testimony) that the claimant has proven and I so find that she is entitled to temporary partial benefits from September 19, 2004 – February 3, 2005 and temporary total benefits from February 4, 2005 – July 7, 2005.
J. I find Dr. Carangelo credible as to his position that the claimant is entitled to a 10% permanent partial disability of the cervical, a 7% permanent partial disability of the left shoulder and a 5% permanent partial disability of the lumbar spine, all with an MMI date of July 8, 2005.

On June 26, 2006 the Respondents filed a Motion to Correct the aforementioned findings. Their argument was that the various physicians had opined to an earlier date of maximum medical improvement. They asked for the verbiage of Findings, ¶¶ 12, 14, and 16 to be changed accordingly. The earlier date of MMI would cause the Form 36 approved in 2004 to be valid, and would provide grounds for the respondents to seek to remove the temporary partial and temporary total benefits from the award, therefore they sought to have Findings, ¶¶ E-H removed. The respondents also sought to have Findings, ¶ J changed to establish August 26, 2004 as the date of MMI. The trial commissioner granted each of these corrections and the claimant has appealed.1

In reviewing this instant decision, our standard of review is deferential to the finder of fact. “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). Counsel for the appellant has not advanced the argument that the trial commissioner was legally barred from approving a Motion to Correct. To the contrary, Wooten v. UTC/Pratt & Whitney, 3674 CRB-06-97-09 (May 7, 1999) stands for the proposition a trial commissioner may grant such a motion so that the findings of the commissioner are consistent with the facts. The appellant argues that the corrections did not cause the ultimate findings to be consistent with the facts on the record.

This argument is essentially an argument that the corrected findings lack evidentiary foundation. We delineated our standard of review in such matters in McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007);

We begin by stating that the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). McMahon, Id.

In the present case the primary issue focuses on the trier of fact concluding that Dr. Carangelo had opined to a date of maximum medical improvement approximately one year prior to the date asserted in his July 8, 2005 letter. We must review the record to ascertain if this was a reasonable conclusion.

In the original Findings, ¶ 12, the trial commissioner relied on Dr. Carangelo’s July 8, 2005 note which he stated, “As for her overall evaluation, I think she has reached maximum medical improvement.” Claimant’s Exhibit A. By granting the Motion to Correct, the trial commissioner was persuaded that the doctor had reached this conclusion at least a year earlier. We have reviewed the doctor’s June 30, 2005 Deposition which was admitted into evidence as Claimant’s Exhibit B. We believe the trial commissioner reached a reasonable conclusion based on the totality of the testimony Dr. Carangelo presented.

On page 13 of the deposition, counsel for the claimant started an inquiry into the patient’s condition as of the date of a March 26, 2004 examination. On page 16, counsel asked:

Q: Any indication to you as to why she was not improving at this point, especially having received some physical therapy?
A: Again, I’m not 100 percent sure why a patient does not fully respond. . . . It’s a very -- it’s a frustrating case, because I don’t know why she’s not progressing.” Claimant’s Exhibit B, pp. 16-17.

Further into the deposition Dr. Carangelo testified that Dr. Pepperman, who had been providing trigger point injections to the claimant had decided to stop this modality of treatment on or about July 12, 2004 “because he felt he could do all he can for her,” pp. 20. He testified to releasing the claimant to light duty on July 22, 2004. Claimant’s Exhibit B, p. 21.

Counsel for the claimant questioned the doctor about the results of an August 19, 2004 and a September 30, 2004 examination. The doctor testified that as of August 19 he described the claimant’s condition as “chronic neck pain,” Claimant’s Exhibit B, p. 23, and testified as to why he still believed that physical therapy would be useful for the claimant although her injury had occurred over a year earlier.

A: Again, I mean, I think that certainly there are certain conditions that plateau, and there’s not much you can do with it. When I start using the word “chronicity” in a patient, it probably defines that area of plateau. But there was nothing else that this--there was nothing else that was going to benefit this patient.

Claimant’s Exhibit B, p. 25.

He further testified when asked if she had reached maximum medical improvement by September 30, 2004. “You can certainly argue that after a year of injury. She can be defined as reaching maximum medical improvement. “. . . if you define temporal relationship to MMI, or maximum medical improvement, a year is when we usually give a permanent partial disability.” He testified however “never did Mrs. Rizzo or her husband or myself even consider a rendering of a permanent partial disability.” Claimant’s Exhibit B, p. 26.

Dr. Carangelo further testified that “throughout the time I’ve seen Mrs. Rizzo, she—her symptoms as well as examination tend to be relatively consistent.” Claimant’s Exhibit B, p. 31. On cross-examination by respondent’s counsel Dr. Carangelo testified as to the concept of “plateau.”

Q: But the healing process within the body is pretty much done by the end of year? That’s when you reach what you call the plateau?
A: I would say—and this is why we look at, I think, not giving an MMI or a permanent partial disability until that year’s extent. I think it’s understood that while things can change, they change at a very small amount after a year.”

Claimant’s Exhibit B, pp. 42-43.

Dr. Carangelo further testified that the claimant had reached this plateau well prior to issuing a permanency rating and an MMI date;

Q: Now, you had testified that she probably reached her plateau a year post injury, but that you hadn’t given a rating, correct?
A: Yes.

Claimant’s Exhibit B, p. 43.

We disagree with the claimant that this amounts to “conjecture or surmise” as to the date of maximum medical improvement. We believe it was a reasonable conclusion for the trial commissioner to reach that Dr. Carangelo determined the claimant had reached maximum medical improvement one year after the accident but had not issued a rating of permanent disability as of this date.2 Accordingly, we cannot find the correction granted to Finding, ¶ 12 was clearly erroneous.

We have also reviewed the claimant’s objections on appeal to Finding, ¶¶ 14 and 16. We find the factual basis for these corrections to be found in the record. As a result, we find the claimant’s arguments that the corrections should been denied unmeritorious. Whether or not to accept these corrections was within the trial commissioner’s discretion, and as an appellate panel we will not revisit such an exercise of discretion.

Since the trial commissioner had the ability to approve the correction of the subordinate facts in Findings, ¶¶ 12, 14, and 16, he was permitted to approve the corrections to his ultimate Findings in ¶ J and the deletion of ¶¶ E, F, G and H of the Finding & Award/Finding & Dismissal so as to confirm these findings to the subordinate facts found. Such a determination is within the trial commissioner’s discretion in accordance with Wooten, supra. If the trial commissioner was convinced that the weight of the evidence was that the claimant had reached MMI on or before the Form 36 had been originally approved, he certainly had the ability to ratify the prior acceptance of this form.

Therefore, since probative evidence supports the trial commissioner’s decision we believe we must uphold his determination whether or not the evidence warrants the approval of a Motion to Correct. We affirm the Finding & Award/Finding & Dismissal, as corrected, and dismiss this appeal.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 The claimant did not file an objection to the Motion to Correct. Nonetheless, we believe we must ascertain if the record supports the commissioner’s decision. BACK TO TEXT

2 We note that the “magic words” of “reasonable medical probability” do not appear in the July 8, 2005 letter relied on by the claimant. We also note that in order to determine the date of maximum medical improvement from the text of this letter, one must infer that the date of the letter was also the date of the claimant’s attainment of maximum medical improvement. The text of the letter itself does not provide such a date. Claimant’s Exhibit A. We do not believe the trial commissioner was required to reach this inference, although the claimant believes such an inference was obligatory. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: December 5, 2007

Page URL: http://wcc.state.ct.us/crb/2007/5106crb.htm

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