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Sierra v. C & S Wholesale Grocers, Inc.

CASE NO. 5370 CRB-1-08-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 23, 2009

SIXTO SIERRA

CLAIMANT-APPELLANT

v.

C & S WHOLESALE GROCERS, INC.

EMPLOYER

and

GALLAGHER BASSETT SERVICES

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, 96 Webster Street, Hartford, CT 06114.

The respondents were represented by Nicholas W. Francis, Esq., Law Offices of Jonathan M. Zajac, P.O. Box 699, Avon, CT 06001.

This Petition for Review1 from the Findings and Orders of the Commissioner acting for the First District was heard May 29, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Randy L. Cohen and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals from the Findings and Orders issued in response to his claim. The most significant issue in his appeal is the argument that the trial commissioner erred in his determination of the claimant’s permanent disability rating.2 The claimant believes that the evidence he presented as to the permanent disability rating assessed against a non-scheduled body part should have caused an increase in the permanent disability rating assessed against a scheduled body part. The claimant argues the commissioner’s decision herein is contrary to the Supreme Court‘s opinion in Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793 (1999). We do not find that either Barton or a later case, Safford v. Owens Brockway, 262 Conn. 526 (2003) compelled the trial commissioner to reach the conclusion sought by the claimant. The claimant had the burden in this matter of persuading the trial commissioner that the injury he sustained to his abdomen acted to increase the disability level of his spine. The trial commissioner was not persuaded by the claimant’s evidence. Since we do not find legal error, we affirm the trial commissioner’s decision and dismiss this appeal.

Prior to entering findings of fact the commissioner took administrative notice of various agreements and forms already entered in the matter, which may be summarized as follows:

The commissioner found the claimant was born in the Dominican Republic in 1973 and had not finished high school. The claimant was married in 2000 and has two minor children. The claimant testified that he reads and writes in Spanish, but cannot read or write in English. An interpreter translated the claimant’s testimony at the formal hearing into English.

The claimant commenced working for the respondent C & S Wholesale Grocers, Inc. in April 2000. He was employed as a “selector” at C & S, which required him to utilize a pallet jack in the warehouse to pick the orders, followed by wrapping the pallets in plastic, and then loading them onto a truck. While working at C & S the claimant said on December 14, 2004, he suffered a crush injury to his abdomen while operating a fork lift.

Following the accident he was transported to Baystate Medical Center on the date of injury. He underwent three abdominal surgeries at Baystate Medical Center and treated under the care of Eleanor S. Winston, M.D. and Mariluz Rivera-Hernandez, M.D. Since the injury the claimant testified he has constant pain and diarrhea; and this pain is primarily in his stomach and back. The claimant testified to his daily activities. On a typical day, he reads the Bible. He testified that he has not taken classes to obtain a G.E.D or to improve his English, but engages in Bible studies in his apartment building which are approximately 2-3 hours per session, four times per week.

The claimant further testified that he is able to go out shopping, clean his apartment, cook his own food, wash the dishes, and he was able to drive himself from Springfield, MA to the Formal Hearing in Hartford on February 11, 2008. His treating physician, Rocco Orlando III, M.D. opined the claimant had no capacity for physical work, but might be able through vocational training to acquire work skills for sedentary activity.

Dr. Orlando opined that the damage to the claimant’s abdominal wall equates to a fifty percent (50%) disability of the spine. At a February 7, 2008 deposition Dr. Orlando clarified his impairment rating by explaining that the impairment is to the claimant’s abdominal wall and not the lumbar spine, and further stated this opinion was not based on the AMA guidelines, which he felt were deficient in dealing with this injury. He stated his impairment rating of the claimant’s spine was based mostly on his personal opinion. He also testified at the deposition the claimant has a sedentary work capacity and would be capable of working at a desk, with no lifting more than five (5) pounds.

The trial commissioner found that another physician, W. Jay Krompinger, M.D., had offered an opinion on the claimant’s level of disability. Dr. Krompinger had treated the claimant for his spinal injuries in 2005, prior to the claimant filing his Form 30C commencing this claim on May 4, 2006. Dr. Krompinger stated that, from an orthopedic standpoint, the claimant has an eight percent (8%) permanent partial disability to his lumbar spine.

Finally the commissioner found that Dr. Orlando had suggested that the claimant undergo pain management. Dr. Orlando had recommended Dr. Eugene Lucier as a pain management specialist for the claimant’s chronic pain issues.

Based on these subordinate facts the trial commissioner determined that while the claimant sustained a 50% impairment of the abdominal wall, this body part is not a scheduled organ enumerated in § 31-308 C.G.S., and denied the claim for permanent partial disability for this body part. The commissioner found Dr. Krompinger’s opinion that the claimant had an eight percent (8%) permanent partial disability of the lumbar spine credible and persuasive. The commissioner concluded the claimant was not permanently and totally disabled, and found he had a sedentary work capacity with a five (5) pound lifting restriction. The commissioner also authorized pain management for the claimant. The claimant filed a Motion to Correct which was denied in its entirety. The claimant now is pursuing the present appeal which is based on his belief that the evidence in this case would have compelled the trial commissioner to award a 50% permanent partial disability award for the lumbar spine injury, as well as to have found him permanently and totally disabled.

The claimant argues that Barton, supra, was improperly applied by the trial commissioner and had he properly applied the legal principles in that case, he would have ruled in favor of the claimant on the issue of disability. We have reviewed Barton and disagree.

The claimant argues that the Barton decision “gives the Commission power to carry out the intent of the humanitarian purpose of the Workers’ Compensation Act without excluding injuries that are unscheduled.” Claimant’s Brief, p. 6. The problem here is that there is a huge gulf between what the Commission may have the power to do, and what a trial commissioner is required to do following a formal hearing.

The Barton decision does not limit the fact finding prerogative of the trial commissioner. Our black letter law states “[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). It is also black letter law that “[i]t is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). Therefore we must ascertain if the claimant’s evidence was so compelling as to require the trial commissioner to award a 50% permanency rating to the claimant for his lumbar spine.

In his deposition of February 7, 2008, Dr. Orlando was asked as to the impairment of the claimant’s abdominal wall.

Q: Assuming that you believe that the AMA guides provided a proper utilization or a proper approach for the establishment of impairment, of the impairment of the abdominal wall, what would be the amount of the impairment, Doctor?
Mr. Johnson: Objection, since it’s a double hypothetical within a question.
Q: You can answer, Doctor.
A: 50 to 70 percent.

Respondents’ Exhibit 3, p. 22.

The witness then was asked as to placing a rating of impairment on the claimant’s spine.

Q: Okay. And Doctor, with respect to your opinion as to the amount of impairment, the impairment is to Mr. Sierra’s abdominal wall, correct?
A: That’s correct.
Q: It is not an impairment to his lumbar spine?
A: I’m not qualified to make that assessment.
Q: And it is not an impairment to any of his skeletal structures?
A: No, it’s not.

Respondents’ Exhibit 3, p. 23.

In his Motion to Correct, ¶ X the claimant states Dr. Orlando opined a 50% permanent partial disability rating to the lumbar spine due to the abdominal injuries. The apparent basis for this position was Dr. Orlando’s July 16, 2007 medical report. Claimant’s Exhibit A. The deposition transcript does not support that opinion, however. Dr. Orlando stated he “was not qualified to make that assessment.” Therefore, any reliance on Dr. Orlando’s opinion for a rating of spinal impairment would be “grounded in speculation or conjecture” and pursuant to DiNuzzo v. Dan Perkins Chevrolet Geo, 99 Conn. App. 336 (2007), would not constitute probative evidence.

The claimant’s counsel argued at oral argument before this panel that the trial commissioner made inconsistent findings of fact. In his view, Finding, ¶ B and Finding, ¶ C were inconsistent. We disagree. The trial commissioner was presented with competent evidence supporting the finding of disability to the abdominal wall. That body part is not an enumerated organ under our statute. The witness failed to provide persuasive testimony linking this disability to a disability rating for the lumbar spine. We find no inconsistency herein.

We look to Barton, supra, where the Supreme Court rejected a similar interpretation of the statute.

We disagree with the plaintiff’s contention that this statement by Senator Meotti constitutes evidence of a legislative intent to have subsection (c) of General Statute (Rev. to 1993) § 31-308 somehow interpreted back into the current statute. Senator Meotti’s statement suggests only that he believed “that the commissioners would have the discretion to find injuries of that sort to be subsumed within other descriptions within that schedule…” (Emphasis in original)

Id., at 809.3

We look to this precedent and notice that it states commissioners would have the discretion to award benefits against enumerated organs if they believed the injury to the other body part could be “subsumed within” the injury to the enumerated body part. Given the evidence on the record, we do not believe the trial commissioner abused his discretion in deciding the claimant failed to establish the disability rating to his spine sought by the claimant as a result of the abdominal injury. In discussing the “plain language” of the statute, the Supreme Court in Barton concluded “[i]t does not, however, provide the commissioner with discretion to award compensation for the loss or permanent partial disability of an unscheduled body part or organ.” Id., at 811.4

Following the decision in Barton, supra, the Supreme Court revisited this issue in its opinion in Safford v. Owens Brockway, 262 Conn. 526 (2003). In Safford, the claimant obtained an award by a trial commissioner that reached a decision as to impairment of her upper extremity based on a rotator cuff injury to her shoulder. The defendants appealed this decision and argued the trial commissioner lacked probative evidence supportive of an award of permanency against the enumerated body part. The plaintiff defended her award based on the following rationale.

. . . the plaintiff recognizes that the shoulder is not such an identified body part and that the commissioner therefore had no discretion to award her compensation for the impairment to her shoulder. She contends, however, that compensation properly was awarded for impairment to her arm in accordance with § 31-308 (b) based upon sound medical evidence that the commissioner was free to credit, specifically, Brown’s first report in which he assigned her 20 percent permanency rating of both her shoulders.

Id., at 533.

The Supreme Court acknowledged that such a decision was dependent on the presence of competent medical evidence. Since the court determined that the trial commissioner’s finding was not based on such a foundation of probative evidence, the court remanded the matter for a new evidentiary hearing.

The trial commissioner in the present case determined that Dr. Krompinger’s opinion as to the claimant’s level of lumbar impairment was credible and persuasive. We must ascertain if this conclusion was reasonable. We note that the claimant makes no assertion that Dr. Krompinger failed to offer competent medical testimony and that even if this opinion was challenged, that if “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).

The reports of Dr. Krompinger indicate that the doctor or his assistant examined the claimant on May 12, 2005, October 6, 2005, and November 18, 2005. The reports document the claimant suffered low back pain and had issues with his SI joint. On May 25, 2006 Dr. Krompinger issued a report acknowledging the claimant’s progress had been “complicated by chronic GI problems.” Dr. Krompinger stated, “I think from an orthopaedic standpoint, I would consider him at maximum medical improvement and would assign an 8% percent permanency to the lumbar spine.” Respondents’ Exhibit 2. Dr. Krompinger did not elaborate as to how he arrived at this 8% rating and whether this rating subsumed any impairment from the claimant’s abdomen.5

A more detailed explanation as to how the doctor arrived at this impairment rating may or may not have been helpful to the trier of fact. However, as the doctor was not deposed, the commissioner was left with the evidence presented. As a result, the trial commissioner was permitted to rely on the evidence “as is.” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). The trial commissioner found this evidence credible and persuasive and we cannot find that this conclusion was an abuse of his discretion. Indeed, in light of the deficiencies identified with Dr. Orlando’s testimony it is readily apparent why the commissioner concluded Dr. Krompinger prevailed in the classic battle of the “dueling expert[s].” Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006) n.1.

Finally, the claimant briefly asserts that the evidence on the record would support a finding that he is permanently and totally disabled. Claimant’s Brief, p. 7. Since the claimant identifies no legal error committed by the trial commissioner in reaching a contrary decision on this point, we find this argument lacks substance.

This case rests on the trial commissioner’s determination of whether the claimant’s legal averments were supported with probative evidence. We must respect the commissioner’s evaluation of evidence and we cannot conclude this decision is at all inconsistent with the legal standards enunciated in Barton or Safford. The Findings and Orders are herein affirmed and the appeal is dismissed.6

Commissioners Randy L. Cohen and Stephen B. Delaney concur in this opinion.

1 We note that a postponement was granted during the pendency of this appeal. BACK TO TEXT

2 The claimant argued at the formal hearing that he was permanently totally disabled. In his Motion to Correct, claimant asserts he had withdrawn his Osterlund claim for total disability benefits. The Motion to Correct was denied. On appeal the claimant asserts he is entitled to permanent total disability benefits. BACK TO TEXT

3 The claimant appears to base his argument essentially on his own interpretation of Senator Michael Meotti’s floor statement prior to passage of the revision of § 31-308(c) C.G.S. The statement reads as follows:

Senator Meotti stated that, “for the purposes of explaining my intent and my sense of what should be in the legislative history, the issue had been raised recently in the public debate not only here, but previous to tonight’s debate about using examples of specific types of injuries that do not appear to be mentioned in the schedule, evisceration and you know, intestinal loss of damage or whatever, and I discussed that specific [issue] with representatives of the [National Council of compensation insurers] who were the people that I think all parties in this debate have gone to for costing out and other guidance on the issues and I would say that it is their opinion that based on existing practice in Connecticut throughout the country that this particular example and other attempts to try and find particular injuries like this and say they are not covered under this language would not in fact be correct, that the commissioners would have the discretion to find injuries of that sort to be subsumed within other descriptions within that schedule such as the stomach. I offer that not to challenge the assertion, but more to make the legislative history, that is my view of how this is written in order to fully protect workers and injuries on the job. 36 S.Proc. Pt. 11, 1993 Sess. pp. 3879-80l.” Claimant’s Brief, pp. 5-6.

We find nothing in this statement that suggests that the question of whether a nonscheduled injury should be “subsumed” into a scheduled injury for the purposes of permanent partial benefits is anything other than a discretionary decision on the part of the trier of fact. Moreover, we question reliance on such legislative history in the wake of the passage of § 1-2z C.G.S., wherein we are limited to considering the “plain meaning” of statutes. The Supreme Court in Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793 (1999) concluded that similar reliance by the plaintiff in that case on Senator Meotti’s statement was “[i]n spite of the clear meaning of § 31-308 on its face. . . .” Id., at 807. BACK TO TEXT

4 The various medical reports of Dr. Krompinger document the claimant was suffering spinal pain related to his sacroiliac joint which was not directly related to his abdominal injuries. See Respondents’ Exhibit 2. BACK TO TEXT

5 Safford v. Owens Brockway, 262 Conn. 526 (2003) stands for the principle that any medical opinion that relies on such a “subsuming” of injury must clearly link the injury to that of a scheduled body part through competent medical testimony, or the opinion must be disregarded by the trial commissioner. Id., at 536. Dr. Krompinger’s opinion references only the lumber spine and lacks the same deficiencies as the medical evidence rejected in Safford. BACK TO TEXT

6 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the claimant’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result; 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

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Page last revised: September 29, 2009

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