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Mallozzi v. Stop & Shop Companies, Inc.

CASE NO. 5337 CRB-2-08-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 4, 2009

LINDA A. MALLOZZI

CLAIMANT-APPELLANT

v.

STOP & SHOP COMPANIES, INC.

EMPLOYER

SELF-INSURED

and

MAC RISK

ADMINISTRATOR

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant is pro se.

The respondent was represented by Benjamin Blake, Esq., and Clayton Quinn, Esq., The Quinn Law Firm, LLC, 204 South Broad Street, Milford, CT 06460.

This Petition for Review from the April 4, 2008 Finding and Dismissal of the Commissioner acting for the Second District was heard1 October 24, 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 claimant herein appeals from a Finding and Dismissal of her claim for temporary disability benefits to compensate her for lost time from work. The gravamen of her appeal is that the trial commissioner should have deemed her testimony and documentation sufficient to justify an award. We conclude this decision was reserved to the trier of fact; therefore we affirm the trial commissioner and dismiss this appeal.

The trial commissioner found these relevant facts following a formal hearing on this matter. The claimant has established pursuant to a Finding and Award dated June 20, 2000 that she suffered a compensable back injury as a result of an incident which occurred December 4, 1998. The claimant reached maximum medical improvement on December 20, 1999 and was left with an eight percent (8%) permanent partial disability of her back for which she was compensated at her base compensation rate of $72.03. Since her 1998 injury she has been employed at a variety of occupations, and at the time of the commissioner’s finding, she was employed as a substitute teacher and hospital x-ray technician.

The primary issue before the commissioner was the claimant’s job absences from her substitute teaching job and her job at Rhode Island’s Our Lady of Fatima Hospital. The claimant submitted into evidence attendance records from her two jobs for the years 2006, 2007, and 2008 which reflected days which are coded as excused absence or personal illness. The claimant further testified that when she is unable to work as a result of her back she does not indicate this to her employer and the documentary evidence did not reflect a reason why the claimant was not working. The claimant did present a script from her treating physician, Dr. Christian Dee, dated April 10, 2007, which diagnosed the claimant with mild stenosis and said she might occasionally need time off for flare-ups.

The issue of whether a TENS unit should be provided to the claimant was also considered. The claimant’s physician in 2002, Dr. Gregory R. Criscuolo, had prescribed such a unit, which Dr. Dee had also prescribed in his April 10, 2007 script. The respondent’s examiner, Dr. Gerald Becker, examined the claimant on November 7, 2007. Dr. Becker supported a trial of a TENS unit and increased the claimant’s disability rating to 10%. The respondent has paid the additional permanent partial award to the claimant. Dr. Dee reiterated his support for the claimant obtaining a TENS unit on November 27, 2007 and subsequent to that examination indicated he had nothing further to offer the claimant orthopedically. A $114.51 bill to Dr. Dee remained unpaid following this examination.

The trial commissioner concluded based on these subordinate facts that while the claimant claimed she lost time from work as a result of her back injury, there were no contemporaneous medical records or documentary evidence to indicate that the specific days lost were as a result of back pain from her compensable injury. The commissioner further concluded the April 10, 2007 script from Dr. Dee which gives the claimant wide latitude to decide when she can and cannot work was insufficient and not credible evidence to substantiate her claim for lost time. Concluding the claimant’s testimony with respect to her lost time from work was vague and not credible, the commissioner dismissed her lost wage claim for lost time from work, but did authorize a TENS unit and directed the respondent to pay the outstanding invoice to Dr. Dee.

The claimant, who is proceeding pro se, did not file a Motion to Correct the Finding and Dismissal. She did file a timely Petition for Review and Reasons for Appeal. We now consider the merits of her appeal.

In reviewing the claimant’s arguments on appeal, we find they center primarily on the claim that the trial commissioner erred in determining that there was insufficient evidence linking her absences from work with the compensable injury. To the extent these arguments focus on the trial commissioner reaching an erroneous conclusion based on the facts presented as evidence, a Motion to Correct would have been the appropriate vehicle to contest this conclusion. In the absence of a Motion to Correct “we must accept the validity of the facts found by the trial commissioner, and that this board is limited to reviewing how the commissioner applied the law.” Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008).2

The claimant also seeks to add evidence to the record for our consideration in the form of additional medical reports which she stated she did not submit to the trial commissioner at the formal hearing. We decline to admit this additional evidence for the reasons stated in Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009), and Diaz v. Jaime Pineda a/k/a Jamie Pineda d/b/a J.P. Landscaping Company, 5244 CRB-7-07-7 (July 8, 2008).

In Torres citing Diaz we considered a somewhat similar case presented by a pro se litigant. We declined to grant his effort to submit medical evidence directly to this board.

A party who wishes to submit additional evidence to this board must prove that they had good reasons not to present such evidence at the formal hearing Carney-Bastryzcki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004). The respondent Second Injury Fund (The “Fund”) points out that in Smith v. UTC/Pratt & Whitney, 3134 CRB 3-95-6 (June 4, 1996) we held the moving party in such a motion must establish the evidence could not have been obtained at the time of the original hearing.We find the evidence in this case the claimant wishes to have considered could

have been presented to the trial commissioner at the time of the formal hearing. Therefore, we decline to admit this evidence, as we held in Diaz, supra, it constitutes “. . . an effort to try the case in an inappropriate piecemeal fashion. Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001).”3

The issue then is whether the trial commissioner had probative evidence for his conclusion that the claimant failed to establish a nexus between her absences from work and her compensable injury. Diaz, supra involved the same type of issue as to the adequacy of the claimant’s medical documentation. We delineated our standard for review of this issue as follows.

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 Co.), 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’s Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

We also noted in Diaz, “[w]e have consistently held it is the claimant’s burden to establish total disability and entitlement to benefits under our statute. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007).” Therefore, we must ascertain if the April 10, 2007 script from Dr. Dee (Claimant’s Exhibit D) compels a different conclusion in this case. We conclude it does not.

The evidence linking the claimant’s absences from work with her compensable injury is corroborated solely with the claimant’s own testimony.4 This becomes solely a determination on the trial commissioner’s part as to the claimant’s credibility and persuasiveness on the central issue: i.e. whether her absences on the days in question were due to a compensable injury. Such credibility determinations are “uniquely and exclusively the province of the trial commissioner.” Smith v. Salamander Designs, LTD, 5205 CRB-1-07-3 (March 13, 2008). The trial commissioner concluded the claimant was not persuasive or credible on this issue and we can find no objective fact on the record contravening this determination. See also Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006) citing Dengler, supra, (claimant must prove causation).

The claimant also argues that she may need additional surgery. We find that Finding, ¶ G, which determined no further orthopedic treatment was required, was supported by probative evidence from the treating physician. We cannot revisit the trial commissioner’s evaluation of such evidence. Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006).

We do note that the trial commissioner did authorize the TENS unit and reimbursement of Dr. Dee’s invoice. In the event the respondent has not addressed these matters consistent with the trial commissioner’s April 4, 2008 Finding and Dismissal, the claimant may seek further proceedings before the trial commissioner to compel compliance with his previous order.

As a result, we conclude the trial commissioner’s determination was a reasonable exercise of his discretion. We affirm the Finding and Dismissal and dismiss this appeal.

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

1 The claimant requested and was granted a telephone conference in lieu of her appearance at oral argument. BACK TO TEXT

2 Among the matters which now cannot be addressed are alleged errors in deposition transcripts. See Vitoria v. Professional Employment & Temps, 5217 CRB-2-07-4 (April 4, 2008). BACK TO TEXT

3 We also note that the claimant argues she submitted a “demand list” to the respondents which should have been considered by this board. However, in Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009), we pointed out that, “[a]n appellate panel cannot take into consideration issues related to unsuccessful settlement negotiations.” BACK TO TEXT

4 The record does not reflect the claimant conferring with Dr. Dee contemporaneously with any of the work absences to discuss her ailment or seeking additional medication to respond to the flare-ups. A trial commissioner may find uncorroborated testimony unpersuasive, even when it is unchallenged by the respondents. Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006). BACK TO TEXT

Workers’ Compensation Commission

Page last revised: March 26, 2009

Page URL: http://wcc.state.ct.us/crb/2009/5337crb.htm

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