State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Nicotera v. City of Hartford

CASE NO. 5381 CRB-1-08-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 2, 2009

FRANK NICOTERA

CLAIMANT-APPELLANT

v.

CITY OF HARTFORD

EMPLOYER

and

CONSTITUTION STATE SERVICE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Michael J. Whelton, Attorney at Law, 111 Founders Plaza, Suite 1706, East Hartford, CT 06108-3289.

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

This Petition for Review from the September 11, 2008 Finding and Award/Finding and Dismissal of the Commissioner acting for the First District was heard February 27, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Randy L. Cohen and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. In Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007) this panel stated, “[w]e have consistently held it is the claimant’s burden to establish total disability and entitlement to benefits under our statute.” In the present appeal, the trial commissioner concluded the claimant failed to prove he was entitled to benefits for various periods in which he missed work and also failed to establish he was entitled to reimbursement of medical expenses because the claimant failed to prove that these matters were the result of a compensable injury. We conclude that these issues constitute a factual determination by the trial commissioner based on the commissioner’s assessment of the claimant’s credibility. Since an appellate panel such as ours cannot retry such issues, we affirm the trial commissioner and dismiss this appeal.

The trial commissioner reached the following findings of fact. The claimant was employed by the City of Hartford as an electrical inspector, and at the time of the incident was the Chief Electrical Inspector. His duties included inspecting new construction and old buildings, going out to emergencies and assisting the fire department. The claimant had had prior injuries and was involved in a motor vehicle accident on June 27, 2006 while employed by the City. A voluntary agreement was approved by the Commission on April 12, 2007 for the June 27, 2006 injury. This agreement identifies Dr. Gerald Becker as the claimant’s treating physician.

The claimant testified that after the June 27, 2006 injury he treated at an emergency room, where he was billed $222.95, and then followed up with his primary care physician. The claimant then, at the direction of the respondent, began treating with Dr. Becker. The claimant stated Dr. Becker prescribed physical therapy but the respondent failed to authorize this modality of treatment. The claimant also testified that he was out of work on January 25, 2007 due to back pain and argued this was compensable based on a January 12, 2007 note from Dr. Becker, stating the claimant “[m]ay miss 1-2 days from work periodically.” Dr. Becker testified that as of January 12, 2007 the claimant was not disabled, and that this note was written to satisfy requirements for the Family and Medical Leave Act regarding prospective absences.

The events of March 2, 2007 through March 9, 2007 were central to this case. The claimant is seeking temporary total disability benefits from March 5, 2007 through March 9, 2007. He testified that he worked a full day on March 1st but left early on March 2nd due to back spasms. He also testified that before he left work that day he called Dr. Becker’s office for an appointment and was advised he could not be seen before March 5th. The claimant then testified that he was called in to work on March 3, 2007 to deal with emergency repairs to the 911 system. He testified that he went into work because he could not reach anyone else and the work was of an emergency nature, and although he was in pain, worked nine and one-half hours that day.

The next day, March 4, 2007, the claimant was involved in a non-work related motor vehicle accident. The claimant did not seek immediate medical treatment following the accident but the accident resulted in over $4,000 in damage to the claimant’s car. The next day the claimant was examined by Dr. Becker’s physician’s assistant, Jon Szydlo. The claimant testified Mr. Szydlo gave him an out of work note for three to five days. The claimant’s counsel received a letter from Dr. Becker dated May 18, 2007 declaring the claimant disabled on January 25, 2007; March 5 through March 9, 2007; March 26 through March 30, 2007; and April 2, 2007; as well as a two week period commencing March 16, 2007.

The claimant also claimed disability for May 30, 2007; June 8, 2007; and from August 9, 2007 through August 13, 2007. The claimant proffered as supportive evidence either the prospective out-of-work note from January 12, 2007 or notes generated by Dr. Becker following the days of work missed by the claimant. The claimant submitted a request to be reimbursed for his expenses on those occasions he was examined by Dr. Becker.

The claimant’s time sheets and medical reports were considered in the context of the March 2007 non-work motor vehicle accident. The claimant’s original time slip reflected a full day worked on March 2, 2007 and no time worked for March 3, 2007. The claimant testified that he later amended the time slip to add the 9.5 hours he worked on March 3, 2007, but forgot to remove the time he claimed he did not work on March 2nd, and had not taken any action to address the overpayment. Mr. Szyldo’s notes of the March 5, 2007 examination stated that the claimant’s back had a “flare-up” on Friday necessitating an early departure from work; but had been “improving over the weekend” until the subsequent March 4, 2007 motor vehicle collision “additionally aggravated his back pain.” The claimant denied he made these statements to Mr. Szydlo. At an October 4, 2007 deposition the claimant testified the March 4, 2007 motor vehicle accident did not noticeably increase his back pain and denied that he had worked the prior day, stating he had been in too much pain to work.

Dr. Becker testified that his office had not examined the claimant between January 12, 2007 and March 5, 2007. He opined the March 4, 2007 motor vehicle accident aggravated the claimant’s back pain and that considering the claimant’s work immediately prior to that accident, the March 4, 2007 accident was a substantial factor in the claimant’s disability for “at least the first few weeks after that.” The trial commissioner also noted the claimant was seeking sanctions against the respondent for unreasonable delay.

Based on those facts, the trial commissioner ordered the respondents to pay for the claimant’s treatment on June 27, 2006. The commissioner dismissed the claim for disability benefits for January 25, 2007 as there was no contemporaneous examination; and for similar reasons, did not find the claimant’s evidence regarding the other dates of disability persuasive. He dismissed without prejudice a claim related to treatment on March 10, 2008 owing to a lack of evidence from either party. Concerning the events of early March, the trial commissioner found the claimant’s condition had been improving prior to the March 4, 2007 motor vehicle accident. The commissioner did not find the claimant’s statement that he had not worked the day prior to the motor vehicle accident credible. The commissioner also found the claimant’s denial he told Mr. Szydlo his condition had worsened due to the car accident was not credible. The commissioner also found the claimant’s testimony as to his level of pain on March 3, 2007 strained credibility.

The trial commissioner found the March 4, 2007 motor vehicle accident was a substantial factor in the claimant’s subsequent disability. The trial commissioner also determined the claimant’s subsequent treatment was arising from the non-work accident and denied the claim for reimbursement. Since the claimant’s credibility was reasonably subject to investigation in this matter, the trial commissioner did not find undue delay.

The claimant filed a Motion to Correct which sought 26 corrections of factual findings and conclusions. The reason proffered for many of the corrections was to “clarify the record.” The Motion to Correct was denied in its entirety and the claimant has pursued this appeal.

The claimant’s appeal is based on his belief the trial commissioner failed to properly weigh the evidence presented, in particular, the various out of work slips presented by Dr. Becker. The claimant also believes the trial commissioner failed to appropriately apply the proximate cause analysis to the relative weight of the compensable injury versus the noncompensable motor vehicle accident of March 4, 2007. In support of these arguments the claimant relies on precedent from the decision in Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670 (2003). In the claimant’s view, Sprague requires the trial commissioner to credit an expert witness’s opinion in the absence of conflicting expert testimony. This interpretation of Sprague is erroneous.

We note that in Sprague the trial commissioner credited the claimant’s testimony that he was injured lifting heavy wood and brush in the course of his employment. The trial commissioner had corroborating medical evidence associating this activity with an increased risk of disc rupture. Since we concluded the factual basis relied on by the trial commissioner was not “clearly erroneous” we upheld his decision to award the claimant benefits. The Appellate Court upheld our decision.

In the present case, unlike Sprague, the trial commissioner did not credit the claimant’s testimony on a number of material issues. Indeed, the scenario herein more closely resembles the legal and factual issues we decided in Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008).

In Ialacci, the claimant testified to being injured on the job and presented expert testimony on the issue of causation from his treating physician. The trial commissioner, however, credited the testimony of fact witnesses disputing material elements of the claimant’s narrative and dismissed the claim. We upheld the trial commissioner.

The claimant’s appeal is based upon his belief that since his medical evidence was uncontroverted, that the trial commissioner was obligated to find he had suffered a compensable injury. The claimant argues Daniels v. Alander, 75 Conn. App. 864 (2003) and Gianetti v. Norwalk Hospital, 266 Conn. 544 (2003) are binding authority for reversing the trial commissioner and finding the claimant’s injury compensable. We do not find this argument persuasive as the claimant made precisely the same argument in Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006), and we found the trial commissioner could properly disregard uncontroverted expert testimony when he found the claimant lacked credibility. See also Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008)(trial commissioner may decide not to credit an expert opinion which relies on a patient narrative the commissioner deems unreliable).
On numerous occasions, this board has repeated the axiom that the claimant has the burden of persuasion before the Commission. Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006). Central to sustaining the burden is the claimant establishing that he or she is a credible witness. Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB 6-07-7 (July 22, 2008). 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).

Ialacci, supra.

The record herein indicates that the trial commissioner was presented with mutually inconsistent statements from the claimant regarding his activities on or about March 4, 2007. He was also presented with testimony he found persuasive from Mr. Szydlo of Dr. Becker’s office concerning why the claimant’s condition deteriorated at that time; and which conflicted with the claimant’s testimony. We cannot find this conclusion as to credibility “clearly erroneous,” Sprague, supra, particularly as we did not observe the claimant’s testimony. Burton v. Mottolese, 267 Conn. 1, 40 (2003). Since the trial commissioner found a credibility issue with the claimant, he was entirely within his rights to disregard any testimony of Dr. Becker which was reliant on the claimant’s narrative. Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008).

The claimant argues that the trial commissioner improperly applied the “proximate cause” analysis and should not have determined the noncompensable motor vehicle accident was the substantial factor in the claimant’s subsequent condition when Dr. Becker opined to the contrary. However, we find that on the facts and the law this case is indistinguishable from Abbotts, supra. In Abbotts the claimant testified his back ailment was incurred unloading a truck and presented a medical opinion consistent with said mechanism of injury. The trial commissioner credited other witnesses who said the claimant told them he fell on ice at home after his injury at work. Both this panel and the Appellate Court upheld dismissal of the claim. As we pointed out in Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008) “[w]hether or not a factor behind the need for surgery is ‘substantial’ is a matter left to the discretion of the trial commissioner, as ‘it 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)]. Given the conflicting evidence in this case, this panel cannot retry the issue of proximate cause. Therefore, we cannot find error as to the denial of various claims presented on dates subsequent to the March 4, 2007 motor vehicle accident seeking total disability benefits and reimbursement for medical treatment.

The claimant also challenges the trial commissioner’s decision to dismiss the claim for temporary total disability on various dates where Dr. Becker provided either a prospective out-of-work note or an opinion rendered at a later date absent a contemporaneous examination. We find this matter indistinguishable from the decision we reached on the same issue in Mallozzi v. Stop & Shop Companies, Inc., 5337 CRB-2-08-4 (March 4, 2009).

In Mallozzi, the claimant argued that her prospective out-of-work notes from the treating physician should have been sufficient to justify the award of temporary total disability benefits. We cited Diaz v. Jaime Peneda a/k/a Jamie Pineda d/b/a J.P. Landscaping Company, 5244 CRB-7-07-7 (July 8, 2008), appeal pending, A.C. 30147, in Mallozzi for the standard a commissioner should apply in considering such evidence of temporary disability.

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).

Mallozzi, supra.

We believe given the facts herein that the claimant simply did not persuade the trial commissioner that he was totally disabled on the days in question from a compensable injury. Since the trial commissioner cited the absence of contemporaneous medical examinations for the dates in question, we are unable to revisit a factual determination the claimant was not totally disabled on those dates.

“If the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.” Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000), appeal dismissed, A.C. 21533 (2001). The claimant has failed to advance a substantial argument that the trial commissioner committed legal error and in the absence of such averments, we must respect the commissioner’s evaluation of evidence. The Finding and Award/Finding and Dismissal is herein affirmed and the appeal is dismissed.1 2

1 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), cert. denied, 262 Conn. 933 (2003) particularly as the claimant failed to convince the trial commissioner he was a credible witness worthy of belief. Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008). BACK TO TEXT

2 Since the respondent prevailed on material issues in this hearing, we can find no error in the trial commissioner’s decision not to award sanctions for undue delay. There was no abuse of discretion herein. Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008). BACK TO TEXT

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