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Fountain v. Coca Cola Bottling Company

CASE NO. 5328 CRB-1-08-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 18, 2009

EDWARD FOUNTAIN

CLAIMANT-APPELLEE

v.

COCA COLA BOTTLING COMPANY

EMPLOYER

and

CNA INSURANCE COMPANIES

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Jan P. van der Werff, Esq., Law Office of Jan P. van der Werff, One Barnard Lane, Suite 202, Bloomfield, CT 06002.

The respondents were represented by Ann Marie Keaney, Esq., and Robert K. Jahn, Esq., Morrison Mahoney, LLP, One Constitution Plaza, Hartford, CT 06103.

This Petition for Review from the February 27, 2008 Finding and Award of the Commissioner acting for the First District was heard September 26, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have appealed an award of temporary partial disability benefits awarded to the claimant pursuant to §31-308(a) C.G.S. The respondents argue this award was based on inadequate and inconclusive evidence. Since we believe it is the duty of the trial commissioner to weigh the evidence, especially as it pertains to the credibility of the claimant, we do not find reversible error. We affirm the Finding and Award and dismiss this appeal.

The trial commissioner found the following facts. He took administrative notice of a prior Voluntary Agreement approved August 24, 1998 in which the respondents accepted the claimant’s low back injury which occurred on September 8, 1997. The Voluntary Agreement also designated Dr. Stephen Calderon as the claimant’s treating physician and established a 10% permanent partial disability rating with a base compensation rate of $457.98 per week. The claimant was employed by Coca Cola for a fifteen year period concluding in 2003. He was employed as a “route merchandiser” by Coca Cola, which entailed delivering, lifting, loading, and unloading 350-500 cases of soda per day, each weighing approximately thirty (30) pounds.

On September 8, 1997 the claimant was delivering ten cases of soda to a convenience store and lifting this product up a stair when he felt a sharp pain in his back. The September 8, 1997 injury resulted in an L4/L5 disk herniation. From the date of this injury to the conclusion of his employment with Coca Cola the claimant was given less strenuous duties. The claimant has continued to have chronic and recurrent low back pain with intermittent right or left lower extremity pain since the date of injury.

The claimant presented medical evidence from Dr. Calderon opining that his current chronic back and leg pain was due to the original injury of September 8, 1997. In his October 5, 2007 letter, Dr. Calderon also opined the claimant had not yet reached maximum medical improvement. The respondents had the claimant examined by their expert, Dr. Steven E. Selden, on December 10, 2007. Dr. Selden concurred with Dr. Calderon as to the causation of the claimant’s current condition, but opined that the claimant had reached maximum medical improvement and that no further medical treatment was warranted. Dr. Calderon, on the other hand, suggested that future treatment may include additional lumbar fusion or discectomy.

Apart from the medical evidence presented, the claimant submitted a claim for temporary partial disability for the period beginning May 31, 2007. The claimant submitted evidence of unsuccessful job searches and testified that he has attempted to find work within his physical limitations. The respondent’s expert opined these limitations included a permanent restriction from lifting more than twenty-five (25) pounds, as well as repetitive bending, squatting, lifting, and climbing.

Based on those subordinate facts the trial commissioner concluded Dr. Calderon’s opinions as to the claimant’s medical condition and proposed treatments were more persuasive and credible than those of Dr. Selden. The commissioner concluded the claimant had not reached maximum medical improvement and had been temporarily and partially disabled since May 31, 2007, and remains temporarily partially disabled. Although the trial commissioner deemed some of the claimant’s job searches “marginal” he concluded he had made reasonable efforts to demonstrate his willingness to work. Therefore, the commissioner awarded the claimant temporary partial disability benefits pursuant to § 31-308(a) C.G.S. at his base compensation rate, for the period beginning May 31, 2007, and continuing until such time as the claimant either reaches maximum medical improvement or is released to full duty.1

The Respondents filed a Motion to Correct which was denied in its entirety. The respondents have appealed from this denial. The basis of the respondents’ appeal is the trial commissioner had inadequate evidence for which to find the claimant had established a claim for temporary partial disability benefits.

In Bennett v. Wal-Mart Stores, 4939 CRB-7-05-5 (May 15, 2006), we outlined the claimant’s burden when seeking § 31-308(a) C.G.S. benefits.

In Sellers v. Sellers Garage, 80 Conn. App. 15 (2003), the Appellate Court outlined the standard for awarding a full partial disability award, “[t]o receive full compensation for partial disability under § 31-308(a), a plaintiff must satisfy the following three-pronged test: (1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available . . . .” (Internal quotation marks omitted.) Mikula v. First National Supermarkets, Inc., 60 Conn. App. 592, 598, (2000), Sellers, supra, at 20-21.

In Bennett, we remanded the case because upon review we concluded that while the trial commissioner found the claimant was “able” to work; there were no findings or inferences in the record that enabled this board to conclude the commissioner found the claimant was “willing” to work. “For the claimant to collect benefits under § 31-308(a), she was required to show she was ‘ready and willing’ to perform work within her restrictions.” Id. In the present matter, the claimant did present extensive documentation as to actually conducting a job search. See Respondents’ Exhibit 1. Although the trial commissioner may have found the claimant’s job search strategy to be suboptimal, Findings, ¶ E, we can readily infer the claimant satisfied the “willing” criteria to the commissioner’s satisfaction, as he concluded the claimant’s efforts were “reasonable.”

The respondents also challenge the adequacy of the medical evidence providing support for the trial commissioner’s findings. Since this issue essentially amounts to the conclusion that the trial commissioner should have credited Dr. Selden’s opinion over that of Dr. Calderon, we find this issue is a reprise of the issues we considered in Huertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007). For the reasons stated in Huertas, “we must defer to the factual findings of the trial commissioner in such ‘dueling expert’ cases.” (Internal citations omitted) Dellacamera v. Waterbury, 4966 CRB 5-05-6 (June 29, 2006) n.1.2

The respondents finally argue that this case reaches a result which is inconsistent with Baldino v. Charles Corcoran d/b/a Corcoran & Son Landscaping & Paving, 4275 CRB-4-00-8 (July 23, 2001). We can readily distinguish Baldino from this case. In Baldino the claimant was denied benefits for failing to satisfy the statutory standards for § 31-308(a) C.G.S. benefits. We noted “[w]hether a claimant has satisfied the statutory criteria for § 31-308(a) wage differential benefits is a factual determination for the trial commissioner. Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995).” Since “the trial commissioner found that the claimant did not present credible testimony regarding his job search efforts” in Baldino, supra, we affirmed the commissioner’s dismissal.

In the present case, however, the commissioner concluded, notwithstanding the respondent’s arguments to the contrary, that the claimant had made a reasonable job search effort. In Sweet v. Coca Cola Bottling Company, 5262 CRB-1-07-8 (August 27, 2008) we held “[w]here the veracity of a witness’ factual representations is at issue, the trier’s credibility assessment is virtually inviolable on appeal. Canevari [v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001)]” citing Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). We must extend similar deference to the trial commissioner in this case.3

This appeal boils down to a dispute over the claimant’s credibility and that matter can only be resolved by the trier of fact. We affirm the Finding and Award and dismiss this appeal.4

Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.

1 The trial commissioner also considered the issue of undue delay and denied the claimant’s bid for sanctions. As this element of the Finding and Award is not under appeal, we need not consider it in this decision. BACK TO TEXT

2 The respondents argue that Dr. Calderon failed to directly opine that the claimant was “partially incapacitated from all gainful employment.” However, we note that there is no dispute the claimant has a permanent partial disability, including a limitation on lifting. As to the impact such a disability has on his present earning capacity, “[w]hether or not a claimant’s skills constitute marketable labor is a factual decision.” Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002). We have found a trial commissioner may rely, in part, on the claimant’s demeanor evidence in ascertaining whether the claimant has work capacity. Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007). We may properly infer the trial commissioner found the claimant sought and was unable to obtain work within the parameters of his work capacity. BACK TO TEXT

3 Much of the respondents’ argument on appeal is that the trial commissioner should not have found the claimant credible. In particular, the respondents argue that they terminated his employment in 2003 for misconduct, and therefore, the claimant may have had light-duty work provided to him during the period in question had he not been terminated. This argument is ultimately unpersuasive, if for no other reason than the respondents failed to submit a Motion to Correct on this issue. We also note that an employee’s termination for cause raises only a discretionary issue for the trial commissioner’s consideration as to the claimant’s willingness to work. Levey v. Farrel Corp., 3649 CRB-4-97-7 (July 30, 1998), and is not an absolute bar to receiving benefits. BACK TO TEXT

4 We uphold the trial commissioner’s denial of the respondents’ Motion to Correct. This motion sought to interpose the respondents’ conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT

Workers’ Compensation Commission

Page last revised: February 25, 2009

Page URL: http://wcc.state.ct.us/crb/2009/5328crb.htm

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