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Christy v. Ken’s Beverage, Incorporated

CASE NO. 5157 CRB-8-06-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 7, 2007

MEG CHRISTY

CLAIMANT-APPELLANT

v.

KEN’S BEVERAGE, INCORPORATED

EMPLOYER

and

PIONEER ADJUSTMENT SERVICE, INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Joel M. Ellis, Esq., Gersten Clifford & Rome, LLP, 214 Main Street, Hartford, CT 06106.

The respondents were represented by David Weil, Esq., Nuzzo & Roberts, One Town Center, P.O. Box 747, Cheshire, CT 06410.

This Petition for Review of the October 30, 2006 Finding and Award in Part and Dismissal in Part of the Commissioner acting for the Eighth District was heard April 27, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton. The claimant sought an additional hearing on its Motion to Submit Additional Evidence, which was heard before the same panel on August 24, 2007.

OPINION

This appeal concerns injuries sustained by the claimant during the course of her employment installing soda machines for the respondent. The claimant had suffered similar injuries at home prior to her claim for benefits. The trial commissioner was persuaded the claimant’s work injuries were largely self-limiting and did not award her the full scope of benefits she had sought. In addition, a dispute has ensued as to the notice filed by the claimant for her injuries and the respondent’s alleged errors in responding to the notice. We are not persuaded by the claimant’s factual or legal arguments on appeal. Therefore, we uphold the trial commissioner’s Finding and Award in Part and Dismissal in Part.

The trial commissioner made the following findings of fact after hearing evidence at a formal hearing that commenced April 19, 2005, with additional sessions November 8, 2005 and March 9, 2006, with the record closing on July 7, 2006. The claimant commenced this proceeding by filing her Form 30C with the Commission on December 10, 2004, asserting she injured her back at work in Meriden on or about September 23, 2004. She described the injury as an aggravation of an earlier accident which she claims occurred approximately two months earlier at a Big Y Supermarket. Before starting her employment with the respondent on February 2, 2004 the claimant had been injured at home at July 9, 2003. This injury involved being transported to the hospital by ambulance; two days of hospitalization, and eight missed days from work. She was told by a doctor at that time that she had a badly torn muscle and might need back surgery. She had an MRI performed on July 10, 2003.

The trial commissioner determined the claimant failed to produce evidence supportive of her claim she suffered a work related injury in July 2004. He found credible evidence proffered by the respondent that the machine that the claimant said she had been injured installing had not been delivered until August 27, 2004. The trial commissioner did credit her testimony as to the events of September 23, 2004. On that date she was conducting a survey of the soda machine at the Meriden Square Mall’s Subway Restaurant. She had to do some bending and twisting to pull a machine forward and testified she experienced a “thunderbolt” of pain in her lower back. She reported this incident over the phone to her employer and drove to an Ambulatory Care Center in South Windsor to be examined.

The claimant was examined at the Ambulatory Care Center and released with a lifting and bending restriction due to her back. Shortly thereafter she was examined by Dr. Robert Shafer, her personal physician, who opined the claimant’s low back pain was work related. In January 2005 the claimant saw Dr. Barry Messinger, an orthopedic surgeon, who ordered an MRI. The MRI performed on January 28, 2005 showed a mild posterior bulge on the claimant’s spine at L5-S1. Dr. Messinger saw the claimant again on January 31, 2005 and prescribed aqua therapy, kept the claimant out of work for six weeks, referred her to a neurosurgeon, and suggested the claimant consider a pain clinic. The claimant did treat with a neurosurgeon, Dr. Stephen Calderon. In the spring of 2005, Dr. Calderon administered epidural steroid injections and opined that the claimant seemed too eager to have surgery. He also prescribed a discogram for the claimant to determine the need for surgery. He did not examine the film of the earlier MRI.

The respondents had their expert, Dr. Jarob Mushaweh, examine the claimant on May 4, 2005. Dr. Mushaweh reviewed the claimant’s medical records and the films of the July 2003 and January 2005 MRIs. He concluded the claimant had less of a disc protrusion in 2005, which he attributed to re-absorption of the disc. He concluded the 2004 injury was relatively minor and self-limiting, and did not cause additional abnormality to the claimant’s pre-existing condition. He opined that long term treatment of the claimant, including surgery, was related to the claimant’s 2003 injury.

Based on those subordinate facts the trial commissioner determined that Dr. Mushaweh was credible and persuasive. While he found the September 23, 2004 injury was a compensable injury and exacerbated the July 9, 2003 injury, he determined that work related injuries were not a substantial factor in the claimant’s possible need for spinal surgery, and that a discogram would not be related to the compensable injury.1 He found the medical treatment provided to the claimant had been reasonable and necessary and determined that during the period from January 31, 2005 to June 27, 2005 the claimant had appropriately been kept out of work by her treating physicians. He awarded the claimant benefits under § 31-307 C.G.S. for this period, along with 10% interest on the award. He denied the claimant’s bid for benefits under § 31-308 C.G.S.

The claimant filed a Motion to Correct, which was denied. She also filed a Motion for Articulation to ascertain the trial commissioner’s rationale for his findings. The trial commissioner did articulate his findings, stating in part that he relied on the opinions of Dr. Mushaweh on the issues on spinal surgery and the proposed discogram, and that he found no credible evidence that the respondents had unreasonably contested liability or provided any other grounds to award the claimant attorney’s fees. The claimant has appealed.

The claimant’s appeal originally advanced five issues of alleged error by the trial commissioner:

In reviewing the appeal, we note that the claimant did not brief the issue of § 31-308 benefits nor addressed this issue at oral argument before this board. We therefore determine this issue abandoned on appeal. St. John v. Gradall Rental, 4846 CRB-3-04-8 (August 10, 2005); DiBello v. Barnes Page Wire Products, 3970 CRB-7-99-2 (March 2, 2000), aff’d, 67 Conn. App. 361 (2001). The claimant has raised another issue during the pendency of this appeal, however. She claims she is entitled to present additional evidence which she claims she was unable to present at the time of the formal hearing i.e. on the issue of the original notice of claim. In reviewing these claims of error, we conclude none present a persuasive argument for overturning the decisions of the trial commissioner.

We deal first with the issue of seeking additional evidence. The claimant argues that she became aware at a subsequent hearing before another tribunal that the respondents were in possession of a Form 30C for the September 23, 2004 accident dated prior to October 19, 2004 which they had not provided to her prior to the formal hearing for this claim. She now argues that this proves her claim of undue delay warranting the award of attorney’s fees to her counsel.

We find numerous flaws in the claimant’s argument. We are puzzled at the reasoning that the claimant did not have equal access to a document which she herself filed with her employer. Hence, we believe the Appellate Court’s decision in Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 57-58 (2001) is binding on this issue, as we believe the claimant had an opportunity to present this document at the formal hearing but failed to do so. Even assuming arguendo the claimant could be excused from not having this document at that time, we are persuaded she did have this document prior to the original hearing before this board in April 2007, failed to incorporate this issue into her appeal prior to the hearing, and therefore is barred at this date from raising this issue. Rurak v. Sweet Life Inc., 4630 CRB-1-03-2 (February 6, 2004).

More importantly, we also note that it is undisputed the claimant never filed this document with the Commission. The claimant now seeks the extraordinary relief of admitting as late evidence a document which had no legal effect whatsoever, as the claimant failed to file it with the Commission and therefore, did not engage our jurisdiction. We also reject the claimant’s argument that the trial commissioner was obligated to penalize the respondent in some fashion for filing a Form 43 contesting liability prior to the claimant perfecting her claim with a valid Form 30C filed at the Commission. Were this strategy to be recognized, this would encourage the obvious mischief of intentionally filing a Form 30C with the employer, not filing the same form with the Commission, filing a later Form 30C with the Commission and then seeking penalties or preclusion against the respondent by asserting deficiencies in their Form 43. Based on the reasoning expressed in the dissent in Verrinder v. Matthew’s Tru Colors Painting & Restoration, 4936 CRB-4-05-4 (December 6, 2006) we find this approach untenable on public policy grounds.

We also believe that even had this document been accepted as evidence that it was highly speculative the trial commissioner would have reached a different decision on the issue of awarding attorney’s fees. In Marra v. Ann Taylor Stores Corp., 5027 CRB-3-05-11 (December 29, 2006) we delineated our standard of review on this issue.

“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). Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006). Marra, Id.

By rejecting the claimant’s Motion for Articulation it is obvious the trial commissioner determined that the respondents did not unreasonably contest liability for this claim. That is a decision reserved to his discretion. By denying this motion, and awarding interest at the rate of 10% per annum, we infer that the trial commissioner did not find fault or neglect on the part of the respondents and pursuant to Abrahamson v. State/Department of Public Works, 5054 CRB-2-06-1 (January 9, 2007) he was justified in awarding interest without awarding attorney’s fees. This remedy is clearly permitted under § 31-300 C.G.S. We do not find this decision arbitrary and must defer to the commissioner’s judgment on this matter.2

One significant obstacle to the claimant’s demand for attorney’s fees is that the trial commissioner found for the respondent on a number of substantive issues. The claimant has appealed those issues as well. We conclude the trial commissioner had a reasonable basis for his findings on the issues of future surgery, a discogram, and entitlement to § 31-307 C.G.S benefits. In all these issues, we must respect the fact finding prerogative of the trial commissioner.

The trial commissioner concluded in Findings, ¶ E, “In the event spinal surgery at L5-S1 is recommended and/or performed on this Claimant, neither the incident of September 23, 2004 or July, 2004 is a substantial factor in causing the need for such treatment.” In his articulation he stated he relied on the opinions of Dr. Mushaweh to reach this conclusion.

The claimant argues the opinions of Dr. Mushaweh do not support this conclusion. We have exercised a deferential standard of review when a trial commissioner’s evaluation of evidence is challenged, as enunciated 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.

Dr. Mushaweh testified at a deposition on August 4, 2005. At this deposition he testified that the claimant’s level of disc herniation decreased between 2003 and 2005, while he had expected to see more herniation and “. . . if the injury of July ‘04 was that significant, then you should see some herniation if it was.” Respondent’s Exhibit 4, p. 14. He further testified that he did not identify a new problem with the claimant’s back in 2004 that she did not have in 2003.

A . . . . Despite the fact that she had or did not have an injury in 2004, I was submitting to the fact that she did have an injury in 2004. However, I felt that injury was in the bigger scheme of thinking, relatively minor given her preexisting injury.
Q Was it a self-limiting injury?
A That is correct.

Respondent’s Exhibit 4, p. 17.

Dr. Mushaweh explained in greater detail his opinion that the 2004 injuries were not a substantial factor in the claimant’s demand for surgery. While he agreed with claimant’s counsel the work related injury did aggravate her prior injuries, he placed no weight on the subsequent injuries as being a cause for surgery

A . . . . That treatment should fall under her claim of 2004, but what I am saying is any long-term treatment, like you mentioned disk replacement or fusion or whatever, there is no question the evidence are overwhelming in suggesting any further, any treatment of that nature would be the result of her preexisting conditions. I mean, it just -- I can’t fathom anybody saying anything differently.”

Respondent’s Exhibit 4, p. 40.

Our precedent herein requires deference to the trial commissioner’s evaluation of medical evidence.

“If on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier’s discretion to credit that opinion above a conflicting diagnosis. Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003).” Huertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007).

Dr. Mushaweh’s testimony clearly demonstrates he did not believe the work related injuries were a substantial factor behind the issue of surgery. Dixon v. United Illuminating Co., 57 Conn. App. 51, 60 (2000). We believe this issue is akin to Rizzo v. Stanley Works, 5106 CRB-6-06-6 (November 21, 2007) as “[w]e believe the trial commissioner reached a reasonable conclusion based on the totality of the testimony . . . .” Id.

We believe Dr. Mushaweh’s testimony also supports the trial commissioner’s conclusion that at this point in time, a discogram should not be deemed treatment attributed to the compensable injury. We do agree with the claimant’s position that one cannot give Dr. Mushaweh’s current opinion on the appropriateness of an investigative procedure permanent conclusive effect. As we explained in Serluca v. Stone & Webster Engineering, 5118 CRB-8-06-8 (July 13, 2007), the claimant may be able to argue in the future such a test is appropriate as “§ 31-315 C.G.S. provides a statutory avenue to argue conditions have changed since the prior hearing, and at the new hearing the claimant will be left to his proof.” Id. See also Schenkel v. Richard Chevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004).

Finally on the issue of § 31-307 C.G.S. benefits we believe the trial commissioner concluded the claimant failed to meet her burden of proof. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). There was no evidence presented by the claimant that any medical professional had deemed her unable to work beyond the date of Dr. Calderon’s last epidural steroid injections on June 27, 2005. The trial commissioner could have reasonably concluded that the claimant had been cleared to return to work as of this date, and was no longer entitled to temporary total disability benefits.

We therefore affirm the Finding and Award in Part and Dismissal in Part and dismiss this appeal.3

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

1 The trial commissioner found that while the July 2004 incident “may also be compensable,” that “there was no evidence to substantiate any of the benefits due for this occurrence.” BACK TO TEXT

2 Even had the additional evidence been considered by the trial commissioner prior to reaching a decision denying attorney’s fees, we would have been compelled to respect his judgment. We note that on numerous substantive issues the trial commissioner found for the respondents, thus justifying their defense of the claim. Testone v. C.R. Gibson Company, 5045 CRB-5-06-1 (May 30, 2007). BACK TO TEXT

3 The claimant asserts error from the trial commissioner’s denial of its Motion to Correct. Since the Motion to Correct essentially sought to interpose the claimant’s conclusions as to the facts presented, we find no error. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

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