State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Vitoria v. Professional Employment & Temps

CASE NO. 5217 CRB-2-07-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 4, 2008

JOSE VITORIA

CLAIMANT-APPELLANT

v.

PROFESSIONAL EMPLOYMENT & TEMPS

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondents were represented by Courtney Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the March 26, 2007 Finding and Dismissal of the Commissioner acting for the Second District was heard November 16, 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 claimant in this case asserts that he suffered back injuries as a result of his employment. He also asserts he suffers from injuries from exposure to toxic fumes at his former workplace. The trial commissioner concluded that the claimant failed to prove his current medical condition was a result of events in the workplace. The claimant, acting pro se, has appealed the dismissal of his claim. Upon review of the evidence we conclude the trial commissioner relied on expert testimony he deemed credible in reaching this decision. Therefore, we uphold the Finding and Dismissal and dismiss this appeal.

Following a formal hearing that commenced on December 1, 2004 and was continued through four sessions until the record closed February 8, 2007 the trial commissioner found the following facts. The claimant was hired by the respondent in 1994 as a braider and his job consisted of rotating and fastening metal wires. In June 1996 the claimant testified he started suffering difficulty breathing, aches, and itching which he attributed to exposure to chemicals on the wires. He also testified while working on June 18, 1996 he felt a pain in his back and felt paralyzed and experienced pain in his whole body to include his back, shoulders, and arms. While the claimant testified to reporting this incident to his superiors, he also testified that there were no witnesses to this incident.

The claimant was examined by Dr. Job L. Sandoval on June 20, 1996 and June 24, 1996. Dr. Sandoval’s report following the initial examination concerned the claimant’s breathing issues. His June 24, 1996 report included references to leg pain as well as upper and lower back pain and upper shoulder pain. Neither report referenced a lifting accident at work. An MRI ordered by Dr. Sandoval indicated the claimant suffered from degenerative disc disease.

The claimant left for a month’s vacation in Portugal on July 17, 1996. Upon his return he continued to work with difficulty and was transferred to a light duty job which he still had difficulty doing. He was examined again by Dr. Sandoval for pain in his back and shoulders and his allergic reactions on September 23, 1996, and was then examined on October 4, 1996 by an orthopedic specialist, Dr. Daniel Gaccione. The claimant related his pain to Dr. Gaccione as commencing in June 1996 as a result of lifting at work, and Dr. Gaccione diagnosed the claimant with musculoskeletal low back pain and recommended the claimant continue with light duty work. The claimant was laid off on October 28, 1996.

Following his departure from his place of employment the claimant treated with a myriad of doctors both in state and out-of-state, and has received a myriad of diagnoses and treatment and has received some opinions that portions of his symptoms are related to his work at the respondent-employer. In December 1996 the claimant was evaluated by a neurologist, Dr. David Thompson who determined it was difficult to relate all of the patient’s symptoms to any sort of exposure to work. On August 6, 1997 and September 3, 1997 the claimant was evaluated at the Occupational Health Center at Lawrence and Memorial Hospital by Dr. Oyebode A. Taiwo who found no generalized systemic toxicity from any workplace exposure, but found some of the claimant’s symptoms could be due to long-term mechanical effect of heavy work on the musculoskeletal system. On October 21, 1997 the claimant was examined by Dr. Michael Halperin, who diagnosed the claimant with chronic cervical and lumbar pain syndrome. The trial commissioner found Dr. Halperin previously treated the claimant, which is disputed on appeal.

The respondents have had the claimant examined by two experts. Dr. Kenneth Stahl examined the claimant on January 27, 1997 and determined the claimant’s disability was not related to his June 18, 1996 low back injury, but to his “myalgia fatigue syndrome.” The causality of the claimant’s myalgia and fatigue was not clear, and Dr. Stahl was not aware of any workplace exposure which would produce the symptoms complained of by the claimant. On January 20, 2003, the claimant was evaluated by Dr. James Donaldson, a neurologist. Dr. Donaldson opined that the claimant’s long-term diffuse myalgia and fatigue cannot be ascribed to a June 18, 1996 injury and further opined that the claimant’s long-term complaints of pain were not related to any exposure to odors in 1996.

Based on those subordinate facts the trial commissioner found the claimant received medical treatment for cervical and lumbar pain and was diagnosed with degenerative disc disease prior to June 18, 1996. The trial commissioner did not find the claimant’s testimony credible and found no credible evidence to indicate that the claimant sustained a specific June 18, 1996 injury at work. The evidence regarding exposure to chemicals at work was found to be insufficient. The trial commissioner found the medical reports supportive of the claimant were based on the claimant’s narrative and were therefore, not credible. On the other hand the trial commissioner found the opinions of Dr. Donaldson and Dr. Stahl to be the more credible opinions in that the claimant’s myriad and diffuse symptoms and complaints are not related to any specific injury at work or occupational exposure to odors. Accordingly, the trial commissioner found the claimant failed in his burden of proof to establish he was injured due to exposure to odors in 1996 or that the claimant sustained a June 18, 1996 injury at work.

Both the claimant and the respondents present issues, for our consideration on appeal. The respondents seek to have this appeal dismissed for noncompliance with Practice Book Section 85-1. The claimant believes the Finding and Dismissal had numerous factual errors and these errors rise to a level which would cause the decision to be reversed and for the claimant to be awarded benefits. We find both arguments unpersuasive.

We first address the respondents’ argument that as the claimant failed to file a Motion to Correct or Reasons for Appeal in a timely fashion that this appeal must be dismissed. We note that during the pendency of this appeal his attorney withdrew his appearance. Nonetheless, the claimant submitted a detailed brief outlining his arguments regarding the Finding and Dismissal well in advance of the hearing on this appeal from which the respondents were able to prepare a responsive brief which was filed in a timely fashion. We will note the absence of a Motion to Correct greatly impedes the claimant’s ability to contest these findings, but we are reluctant to dismiss the claim on jurisdictional grounds when we can find no evidence that the respondents were prejudiced by the claimant’s actions. Since a timely Petition for Review was received from the claimant, we believe Roussel v. Village Gate of Farmington, 4918 CRB-6-05-2 (February 28, 2006) compels us to deny the Motion to Dismiss. We believe some indicia of prejudice to the respondents should generally exist before we dismiss a claim initiated in a timely manner, as the sole dispute herein is over the adequacy of the pleadings. See also Rinaldi v. Tilcon Connecticut, Incorporated, 4981 CRB-3-05-7 (August 30, 2006).1

We now turn to the merits of the claimant’s appeal. We note that a Motion to Correct was never filed in this appeal. As a result, pursuant to Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6, 4948 CRB-2-05-5 (July 26, 2006); Soto-Velez v. Michael’s Chrysler Plymouth, 4628 CRB-2-03-2 (February 3, 2004); and Crochiere v. Enfield-Board of Education, 227 Conn. 333, 347 (1993) we must accept the validity of the facts found by the trial commissioner as this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4. Our review of the claimant’s appeal brief and his arguments at the hearing on his appeal indicates he believes the factual underpinnings of the trial commissioner’s Finding and Dismissal were wrong. He does not advance errors of law made by the trial commissioner. Therefore, as a matter of law we cannot reverse the trial commissioner.

Even were we to consider the merits of the claimant’s arguments, we would uphold the trial commissioner. We believe substantial evidence in the record supports the trial commissioner’s challenged findings of fact. Moreover, even if we were to conclude the trial commissioner made factual errors, his dismissal was grounded in: a) a credibility determination adverse to the claimant and: b) expert testimony adverse to the claimant. Either ground serves as sufficient independent grounds to sustain the trial commissioner’s dismissal.

The claimant identifies a number of findings as factually wrong. He asserts that Findings, ¶ 11 was wrong as it states, “Dr. Sandoval’s records indicate that the claimant worked a new job and experienced the same problems.” The doctor’s handwritten notes in Claimant’s Exhibit C state “new job=same problem.” The claimant asserts Findings, ¶ 13 was incorrect stating “[t]here was no reference in either the June 20, 1996 or June 24, 1996 medical records of Dr. Sandoval to a lifting injury at work.” The reports from these visits (Claimant’s Exhibit C) do not document any work related injury. The claimant challenged Findings, ¶ 16, “The claimant further testified that he continued to work with difficulty and was transferred to a light duty job which he still had difficulty doing.” This conclusion was stated in Dr. Gaccione’s October 4, 1996 report in Claimant’s Exhibit E. We also find no error in Findings, ¶ 26, as the trial commissioner accurately quoted Dr. Stahl’s report dated January 27, 1997 (Respondent’s Exhibit 2).

The claimant may believe the various doctors made inaccurate statements, but he cannot fault the trial commissioner for his reliance on such opinions. The claimant may have a more meritorious concern over Findings, ¶ 30 where the trial commissioner found the claimant had treated with Dr. Halperin on October 21, 1992. On appeal, the claimant produced a statement from the doctor’s office denying he had been treated on this date. The source of this evidence relied on by the trial commissioner was a handwritten note affixed to Claimant’s Exhibit H which appears to be dated from 1992. We note this is exactly the sort of alleged factual mistake which a Motion to Correct would address; and no such motion was filed. Nonetheless, even assuming arguendo the trial commissioner erroneously believed the claimant treated with Dr. Halperin in 1992 for a back injury, we find this error to be harmless, as “the commissioner’s decision did not rest substantially upon the evidence to which the claimant objects.” Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995).2

The trial commissioner found the claimant’s account of being injured at work in 1996 was not credible. Having resolved this threshold jurisdictional issue in an adverse manner to the claimant, we cannot find error on the commissioner’s part. See Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006) and Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006). Resolving disputes over credibility “is uniquely and exclusively the province of the trial commissioner.” Smith v. Salamander Designs, Ltd. 5205 CRB 1-07-03 (March 13, 2008).3

We finally note that the respondents presented expert testimony that the claimant’s various ailments were unrelated to any incident which occurred in the course of employment. The trial commissioner specifically found Dr. Stahl and Dr. Donaldson credible witnesses. Findings, ¶ F. A review of their medical reports and testimony indicates that they offered definitive opinions on the issue of causation. Dr. Stahl opined “the patient’s disability is not related to his 6/18 low back injury” and “I am aware of no workplace exposure which would produce these symptoms.” Respondent’s Exhibit 2. Dr. Donaldson opined after examining the claimant that while he “may have pulled a muscle in his back in June 1996, his long term diffuse myalgias and fatigue can not be ascribed to that incident.” Dr. Donaldson further opined “[i]t is my opinion that Mr. Vitoria’s psychiatric disorders was neither caused by nor aggravated by the incident at work in June 1996.” Respondent’s Exhibit 4. The trial commissioner was entitled to rely on these expert opinions that the claimant’s ailments were not the result of workplace injuries or exposures. See Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006), “[w]e must defer to the factual findings of the trial commissioner in such ‘dueling expert’ cases.”

As a result, we believe the trial commissioner had substantial evidence to rely on in deciding to dismiss the appellant’s claim for benefits. We must defer to his judgment in this regard and affirm the Finding and Dismissal.

The appeal is dismissed. Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 Compare with Lopez v. A. Anastasio Fence Company, 5101 CRB-4-06-6 (May 23, 2007), where the respondent filed a timely petition for review and then filed no further pleadings, wherein we deemed a dismissal appropriate for failure to prosecute the appeal. BACK TO TEXT

2 We note that a number of the medical exhibits presented stated that the claimant was suffering from “degenerative disc disease” prior to the alleged June 1996 workplace injury. See for example, Dr. Sandoval’s June 1996 lumbar MRI. BACK TO TEXT

3 The trial commissioner therefore can also discount medical evidence which he believes is derivative of an unreliable patient narrative Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008). BACK TO TEXT

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