State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Lamontagne v. F & F Concrete Corporation et al.

CASE NO. 5198 CRB-4-07-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 25, 2008

DAVID LAMONTAGNE

CLAIMANT-APPELLEE

v.

F & F CONCRETE CORPORATION

EMPLOYER

and

PEERLESS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

and

HAYNES CONSTRUCTION

EMPLOYER

and

AIG INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Jonathan Dodd, Esq., Dodd, Lessack, Dalton & Dodd, LLC, Westgate Office, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondents F & F Concrete Corporation and Peerless Insurance Company were represented by Steven G. Howe, Esq. and Vincent DiPalma, Esq., Law offices of Andrew S. Turret, 1 Century Tower, 265 Church Street, Suite 802, New Haven, CT 06510-7014.

The respondents Haynes Construction Company and AIG Insurance Company were represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the January 29, 2007 Finding and Award of the Commissioner acting for the Fourth District was heard October 19, 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 from the award of benefits to a claimant who suffered a back injury that required fusion surgery. The claimant suffered an initial injury in 2002 while in the employ of the respondent F & F Concrete, and then filed a subsequent claim for repetitive trauma injuries in 2004 when he was employed by Haynes Construction. The claimant sought to have his back surgery paid for by workers’ compensation and to receive temporary total disability benefits. The trial commissioner awarded this relief to the claimant and determined that F & F was the responsible party. On appeal, F & F claims the trial commissioner improperly refused to admit evidence which, in the view of the appellant, would have made Haynes Construction partially liable for the award. We believe the trial commissioner acted within her discretion on her evidentiary ruling and in her evaluation of the evidence presented. We affirm her decision and dismiss this appeal.

The trial commissioner held a formal hearing commencing on September 25, 2006 and found these facts which are pertinent to our review of this appeal. The claimant began working for F & F in May of 1999 driving a concrete mixer truck. He suffered a compensable back injury on July 19, 2002 for which voluntary agreements were approved on August 21, 2003. The claimant testified this injury occurred when lifting a cement chute. Initial treatment by the claimant at Alliance Occupational Health proved ineffective and in May 2003 the claimant began treating with Dr. Aris Yannopoulos, an orthopedic surgeon. Dr. Yannopoulos determined the claimant suffered from a lumbosacral strain from the 2002 work related accident which aggravated the claimant’s degenerative disc disease. He treated the claimant conservatively with epidural injections, anti-inflammatories, and physical therapy. By January 2005 the claimant still had back pain, but Dr. Yannopoulos did not feel comfortable proceeding with fusion surgery, although he did not find it “totally unreasonable.”

The claimant stopped working with F & F in August 2003 and started working with Haynes Construction that month doing the same sort of work he had done for F & F; driving a cement mixer truck. He continued working with Haynes until August 2004, when he left that job and filed a workers’ compensation claim against Haynes asserting he sustained repetitive trauma. He eventually obtained a sales job with Town Fair Tire in September 2005.

The claimant continued treatment after leaving F & F. Dr. Yannopoulos opined that the claimant’s work after May 2003 did not cause any further damage to his lumbar spine and did not worsen his degenerative condition. Dr. Mark Spencer, a pain management specialist, examined the claimant in October 2003 and noted the claimant “continues to drive a cement mixer which severely aggravates his pain.” In 2004 the claimant saw Dr. Michael Luchini, an orthopedic surgeon, who referred him to Dr. Thomas Arkins, a neurosurgeon. Dr. Arkins recommended bilateral facet injections after examining the claimant in August 2004. In September 2004 Dr. Arkins determined the claimant had facet arthropathy and believed he would respond to a lumbar fusion.

During the fall and winter of 2004 Dr. Arkins sought approval for surgery. On December 30, 2004 Dr. Arkins opined that “it is reasonably and medically probable that the incident of July 19, 2002 is a substantial factor in Mr. Lamontagne’s current complaints and need for treatment, including surgery.” In 2006, after the claimant obtained a job with group insurance, Dr. Arkins scheduled the claimant for fusion surgery which he performed on March 14, 2006. As of September 25, 2006 Dr. Arkins opined the claimant was still totally disabled following the surgery.

Prior to performing surgery on the claimant Dr. Arkins was deposed by both the claimant and respondent. Dr. Arkins testified that two years of conservative treatment had been unsuccessful and that the July 19, 2002 incident had caused ligaments holding the facet joints together to be injured, causing him to recommend surgery. Dr. Arkins was not aware at the time that the claimant had changed jobs to Haynes Construction, and did not offer an opinion as to whether the claimant’s work at Haynes was a substantial factor in the claimant’s ongoing lumbar spine problem. Dr. Arkins reiterated his opinion that the July 19, 2002 incident was a substantial factor in the need for fusion surgery.

The trial commissioner concluded that based on the totality of the evidence submitted the respondents F & F Concrete and their insurance carrier, Peerless Insurance, were responsible for payment of the March 14, 2006 surgical procedure and continuing temporary total disability benefits, as well as ongoing medical care. Her conclusion was based on finding Dr. Arkins a credible and persuasive witness and crediting his opinion that the need for fusion surgery was related to the July 19, 2002 incident in which the claimant lifted a concrete chute.1 She also noted Dr. Yannopoulos’s opinion that the claimant’s work subsequent to July 2003 did not worsen his degenerative back condition.

Following the issuance of the Finding and Award on January 29, 2007 the respondents F & F Concrete and Peerless Insurance filed a Motion to Correct which was received in the Fourth District office on February 14, 2007. The Motion to Correct sought to admit a single document, a medical report from Dr. Arkins dated September 20, 2006 attributing 10% of the claimant’s impairment to work activity after leaving the employ of F & F. The respondents argued that this evidence mandated that the award be modified to make the other respondent, Haynes Construction, liable for a 10% share of the award. The trial commissioner denied the Motion to Correct finding it untimely and unmeritorious. The respondents have pursued this appeal on the grounds this Motion to Correct should have been granted.

Our precedent stands for the proposition that a trial commissioner acts in a discretionary manner when considering a Motion to Correct. We recently discussed the nature of this discretion in our decision in Rizzo v. Stanley Works, 5106 CRB-6-06-6 (November 21, 2007). Rizzo cited Wooten v. UTC/Pratt & Whitney, 3674 CRB-6-97-9 (May 7, 1999), where we held “[t]he trial commissioner has the discretion to weigh the credibility of all medical and testimonial evidence, even that which appears to be unopposed.” In Wooten we upheld a trial commissioner who decided to grant a Motion to Correct to conform the ultimate findings to evidence on the record he found persuasive. We must extend the same deference to a trial commissioner who decides not to correct the findings when she finds the evidence inadequate.2

The appellant further agrees that on the issue of whether to admit evidence, “a trial commissioner has broad discretion to determine the admissibility of evidence, and an evidentiary ruling will not be set aside absent a clear abuse of that discretion,” citing Merchant v. J.S. Nasin Company, 9 Conn. Workers’ Comp. Rev. Op. 122, 952 CRD-2-89-11 (May 1, 1991). Nonetheless, they argue the trial commissioner did commit a clear abuse of discretion because they believe this evidence was critical to their case. We are not persuaded.

The September 25, 2006 transcript indicates that the other parties to the formal hearing vocally objected to the introduction of Dr. Arkins’ September 20, 2006 letter. Counsel for Haynes Construction advanced the argument that the late admission of such evidence would deny them the opportunity to counter Dr. Arkins most recent opinion. September 25, 2006 Transcript, p. 17. Counsel for the claimant argued that admission of the letter would delay the hearings greatly prejudicing the claimant. Id., p. 18. The trial commissioner responded to the appellant’s counsel that she “had ample time to depose Dr. Arkins for a second time had you needed to . . . .” September 25, 2006 Transcript, pp. 19-20. The appellants offer no explanation for the belated production of Dr. Arkins’ letter. While the formal hearing in the present case had not closed, we find this situation akin to the circumstances in Fox-Gould v. Brooks Pharmacy, 4215 CRB-2-00-3 (May 23, 2001), and reach the same result.

In Fox-Gould we dealt with an appeal claiming error from the trial commissioner’s denial of a Motion to Submit Additional Evidence. We upheld the trial commissioner “the claimant offers no indication that the evidence which she seeks to present is really new or that it was undiscoverable with due diligence at the time of the original hearings.” Id. In the present case, the trial commissioner was presented with eleventh hour evidence objected to by the other parties. The moving party offered no justification for the delay in offering this evidence. We cannot find an abuse of discretion herein as “[o]ur precedent also holds that both parties should be given an opportunity to cross-examine material evidence central to a commissioner’s ultimate factual findings, Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974);” Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007).

The trial commissioner had an alternative ground for denial of the Motion to Correct. While she did find Dr. Arkins a credible witness and relied on his opinions on the issues of the causation of the claimant’s injuries, his level of disability, and the need for surgery (Findings, ¶¶ G- I); we may infer she was not persuaded by his opinion allocating a percentage of the claimant’s present disability to the subsequent employer. “We have reiterated the maxim that a trial commissioner need not credit every opinion an expert witness offers when she relies on that expert for an opinion she does credit. See O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) and Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006).” Risola v. Hoffman Fuel Company of Danbury, 5120 CRB-7-06-8 (July 20, 2007). In Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (November 1, 2001), aff’d, 77 Conn. App. 319 (2003) we pointed out that a trial commissioner is not obligated to grant a Motion to Correct when the issue pertains to the credibility of the witness.

The testimony credited by the trial commissioner included Dr. Arkins’ testimony at the deposition that the claimant’s need for fusion surgery was substantially caused by the July 2002 concrete chute lifting injury while working for F & F. Findings, ¶ H, Joint Exhibit 2, p. 46. The trial commissioner also cited Dr. Yannopoulos’s opinion that the claimant’s work subsequent to July 2003 did not worsen his degenerative back condition. Findings, ¶ E, Joint Exhibit 3, pp. 27-28, 39. We must respect the right of the trial commissioner to rely on competent evidence which she deems most probative to the issues at hand, and which support her ultimate conclusions. “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).

The Appellant cites Fratino v. Harry Grodsky & Co., Inc., 5087 CRB-7-06-5 (May 8, 2007) as being on point with the present case and mandating that this case be remanded to the trial commissioner for a hearing on apportionment consistent with Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003). We do not find Fratino stands for this proposition. Fratino cited Gagliardi, supra, for the proposition a trial commissioner may accept or reject all of part of an expert’s opinion, and thus, deny a Motion to Correct. It also cited Fox-Gould, supra, as supporting a trial commissioner’s right not to admit evidence which could have been obtained earlier through due diligence, but was not provided to the tribunal. In Fratino, the appellant argued that when two injuries are found to have occurred to a claimant “the second injury must be of legal significance in the proximate cause analysis. We are not so persuaded.” Id. We did not remand the case in Fratino for an apportionment hearing and are not persuaded one should be ordered in this case since the trial commissioner did not reach any findings that injuries to the claimant subsequent to his employ at F & F were a substantial factor in his current condition.

Therefore we find no error and affirm the trial commissioner’s Finding and Award.

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

1 Finding paragraph I states this date as “July 19, 2007.” This is clearly a harmless scrivener’s error. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). BACK TO TEXT

2 The parties did not brief the issue of whether the respondent F & F’s Motion to Correct was untimely. We deem this issue abandoned on appeal, particularly as Wooten, supra, stands for the proposition that a trial commissioner may consider a late motion to correct. BACK TO TEXT

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