State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Kaspern v. Estes Express Lines et al.

CASE NO. 5391 CRB-8-08-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 17, 2009

MICHAEL J. KASPERN

CLAIMANT-APPELLEE

v.

ESTES EXPRESS LINES

EMPLOYER

and

GALLAGHER BASSETT SERVICES

INSURER

RESPONDENTS-APPELLANTS

and

LOWE’S

EMPLOYER

and

SPECIALTY RISK SERVICES

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Charles Norris, Esq., and Thomas J. Sousa, Jr., Esq., Chinigo, Leone & Maruzo, LLP, 141 Broadway, P.O. Box 510, Norwich, CT 06360.

Respondents Estes Express Lines and Gallagher Bassett Services were represented by Michael V. Vocalina, Esq., Cotter, Cotter & Mullins, LLC, 6515 Main Street, Suite 10, Trumbull, CT 06611.

Respondents Lowe’s and Specialty Risk Services were represented by David A. Kelly, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the October 16, 2008 Finding and Award of the Commissioner acting for the Second District was heard on May 29, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the October 16, 2008 Finding and Award of the Commissioner acting for the Second District. We find no error and accordingly affirm the decision of the trial commissioner.1

The following factual findings are pertinent to our review. On April 30, 2005, the claimant sustained a compensable injury to his left shoulder. At that time, the claimant was employed by Estes Express Lines as a tractor-trailer driver making deliveries for Home Depot. The claimant drove a flat bed tractor-trailer with a detachable forklift mounted on the back end of the trailer. The claimant testified that he made ten to twelve deliveries per day, and that each time he made a delivery, he had to climb up into the forklift, detach it from the trailer, make the delivery, reattach the forklift, and climb back down. The truck was loaded by other Home Depot employees.

The claimant treated conservatively at the Norwich Orthopedic Group, where Daniel T. Glenney, M.D. diagnosed rotator cuff tendonitis and administered an injection. A voluntary agreement for this injury was approved on November 14, 2005. On May 18, 2006, Dr. Glenney determined that the claimant had reached maximum medical improvement and sustained a five-percent permanent partial disability to the left shoulder. Dr. Glenney stated that additional treatment options included antiinflammatory medication and repeat injections, and if such treatment failed to ameliorate the claimant’s symptoms, he would recommend arthroscopic subacromial decompression.

On or about the end of December 2005, Estes Express lost its contract with Home Depot and the claimant began driving a tractor trailer for Lowe’s similar to the tractor trailer he had driven for Estes Express. The claimant testified that in addition to making deliveries, the employment at Lowe’s required more preparatory work such as processing order paperwork; shrink wrapping the merchandise for delivery, and loading the truck. The claimant testified that the work he did for Estes was “significantly busier,” Findings, ¶ 9, as he generally did three to four deliveries a day, or approximately fifteen to twenty a week, for Lowe’s.

At the request of the respondent Estes Express, the claimant was evaluated by Gerard Lawrence, M.D., on June 23, 2006. Dr. Lawrence noted that the claimant, despite having changed the way he loads and unloads delivery material, was continuing to have shoulder pain when he “abducts” and “externally rotates.” Claimant’s Exhibit B. Dr. Lawrence concluded that the claimant was suffering from chronic impingement syndrome which was not likely to improve on its own and would possibly require an arthroscopic decompression. Dr. Lawrence also concurred with the five percent permanent partial disability rating given by Dr. Glenney, and opined that “the claimant’s left shoulder pain is causally related to his occupation and date of injury of April of 2005.” Id.

On September 12, 2007, the claimant returned to Dr. Glenney and said he was “fed up,” Claimant’s Exhibit A, with the pain in his left shoulder and wanted to undergo the surgery recommended by Dr. Glenney at a previous office visit on May 18, 2006. In correspondence to respondent Estes Express’ counsel dated January 11, 2008, Dr. Glenney stated that although it was possible that the overhead and lifting activities performed by the claimant as part of his job duties as a tractor trailer driver for Lowe’s may have aggravated his shoulder problems, he also “believe[d] the patient never recovered or never had complete relief from his shoulder pain following his work related injury of 4/30/05 while employed at Estes Express Lines.” Respondent’s Exhibit 1. Dr. Glenney also opined,

. . . the impairment rating that I dictated on 5/18/07 and the indication for surgery are directly related to the 4/30/05 injury while employed at Estes Express Lines. I do not believe his job at Lowe’s has materially or substantially contributed to the development of his impingement problem and the indication for the surgery.

Id.

On March 13, 2008, the claimant was examined by Philo F. Willetts, Jr., M.D., at the request of respondent Estes Express. Concluding, based on the history given to him by the claimant, that the claimant was doing the identical job for Lowe’s that he had been doing for Estes Express, Dr. Willetts opined that the repetitive climbing activities required by both employers had contributed to the claimant’s left shoulder impingement and the claimant’s work activities at Lowe’s were a significant contributing factor to his ongoing left shoulder symptoms. Dr. Willetts also found that “surgery is a reasonable option, although not absolutely necessary.” Respondents’ Exhibit 2, Deposition Exhibit 2, p. 13.

The trial commissioner, noting that the claimant had testified that his work for Estes Express had entailed four times as many deliveries per week as that for Lowe’s, concluded that Estes Express was solely responsible for the claimant’s ongoing left shoulder symptoms and the need for surgery, which surgery the trial commissioner also deemed reasonable and necessary treatment. Insofar as Dr. Willetts’ opinion appeared to be predicated on his understanding that the claimant’s job requirements were identical for the two employers, the trial commissioner concluded that the doctor’s opinion was not credible, determining instead that the opinions of Dr. Glenney and Dr. Lawrence were more credible. Relative to the Form 30C2 filed by the claimant on July 3, 2008 alleging a repetitive trauma injury to his left shoulder, the trier concluded that the claimant was primarily prompted to file the Form 30C to “protect himself” in light of Dr. Willetts’ opinion. Findings, ¶ I.

Respondent Estes Express filed a Motion to Correct which was denied in its entirety, and this appeal followed. On appeal, Estes contends that the trier unreasonably inferred, in light of the claimant’s testimony at trial and the medical reports contained in the record, that it was predominantly the claimant’s employment with Estes which led to the claimant’s ongoing shoulder symptoms and need for surgery. “The record reveals undisputed evidence that Kaspern’s job with Lowes was similar to his job with Estes and required him to climb in and out of a detachable forklift (or moffett) when making deliveries.” Appellant’s Brief, p. 9. Therefore, “[i]f both jobs require use of the tractor trailer moffet it is unreasonable to infer that only one job contributed to the need for surgery.” Id., at 10. Estes also contends that Findings, ¶ B, wherein the trier stated, “[a]ll doctors involved agree that the claimant’s job duties which entail climbing in and out of a detachable forklift when making a delivery are responsible for causing his left shoulder injury” is inconsistent with Findings, ¶G, wherein the trial commissioner found that “[t]he claimant’s work at Lowe’s does not significantly contribute to his left shoulder symptoms.”

Additionally, Estes claims as error the trial commissioner’s refusal to recognize that Lowe’s failure to file a Form 433 in response to the claimant’s Form 30C of July 3, 2008 precluded Lowe’s from contesting compensability of the claimant’s left shoulder injury in light of our Supreme Court’s recent holding in Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008). Estes also posits as error the trial commissioner’s conclusion that the claimant filed the Form 30C in order to protect himself, arguing that the finding has no basis in the record and should therefore be stricken or remanded for further analysis. Finally, Estes argues that the trier’s refusal to grant the corrections cited in its Motion to Correct constituted error.

We begin our analysis of this matter by reciting the well-settled standard of deference we are called upon to apply to a trial commissioner’s findings and legal conclusions.

… 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 Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).

We turn first to respondent Estes Express’ allegations of error relative to the trier’s conclusion that the claimant’s employment at Estes Express was responsible for the claimant’s ongoing shoulder symptoms and current need for surgery. We note at the outset that the record contains medical reports from two physicians ascribing the genesis of the claimant’s injury to his employment at Estes Express. Dr. Lawrence, who performed the first of two respondents’ medical examinations, indicated in his report of June 23, 2006, “I think the claimant’s left shoulder pain is causally related to his occupation and date of injury of April of 2005.” Claimant’s Exhibit B. The record also contains correspondence from Dr. Glenney dated May 18, 2006 wherein he assigned to the claimant a five percent permanent partial disability rating of the left shoulder and stated, “I relate this percent impairment directly to the work related injury described to me on 4/30/05.” Claimant’s Exhibit A. Finally, in correspondence dated January 11, 2008 addressed to counsel for respondent Estes Express, Dr. Glenney wrote, “I believe [the claimant] never recovered or never had complete relief from his shoulder pain following his work related injury of 4/30/05 while employed at Estes Express Lines.” Respondent’s Exhibit 1. Dr. Glenney went on to opine, “I believe the impairment rating that I dictated on 5/18/07 and the indication for surgery are directly related to the 4/30/05 injury while employed at Estes Express Lines. I do not believe his job at Lowe’s has materially or substantially contributed to the development of his impingement problem and the indication for the surgery.” Id.

We note that in his correspondence of January 11, 2008, Dr. Glenney does concede that “the overhead activities and lifting required in his job as a tractor trailer driver at Lowe’s could aggravate his shoulder problem.” Id. This remark is consistent with Dr. Lawrence’s observation in his RME report of June 23, 2006 that the claimant’s impingement was “more evident” then than it had been in August of 2005. Claimant’s Exhibit B. We recognize that the word “aggravation” has become a term of art within the workers’ compensation lexicon. See Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996). However, this board has “long held that the question of whether an injury is a recurrence or a new injury is a factual determination for the trial commissioner.” Hanzlik v. James Freccia Auto Body, 15 Conn. Workers’ Comp. Rev. Op. 2, 5, 1984 CRB-7-94-3 (November 1, 1995), aff’d, 43 Conn. App. 908 (1996)(per curiam). Moreover, “it is not a mere increase in pain or symptoms that triggers a finding of a new injury or aggravation within the meaning of the Workers’ Compensation Act. Some finding that subsequent work exposures have contributed to a claimant’s condition must also be present.” Orlando v. Reliable Construction Services et. al., 4791 CRB-8-04-3 (April 6, 2005).

In the instant matter, our review of the medical reports indicates that apart from the opinion of Dr. Willetts, which the trier did not find credible predicated as it was on the operating assumption that the job requirements at Estes Express and Lowe’s were “identical,” Findings, ¶ E, the record is devoid of evidence that the claimant experienced a second injury during his employment at Lowe’s. In fact, Dr. Willetts noted that the claimant told him he did not experience a new injury at Lowe’s, and “he had never had any problems with his left shoulder before April, 2005 and had had no injury since.” March 13, 2008 Deposition Exhibit 2, p. 3. In addition, the claimant testified at trial that his shoulder has bothered him since the date of the injury and “[i]t’s never been back to normal.” October 1, 2008 Transcript, p. 30.

Thus, in light of the lack of evidentiary support for the inference that the claimant’s employment at Lowe’s constituted an “aggravation” such that liability for the sequelae of this aggravation would transfer to Lowe’s, and given the medical reports from Drs. Glenney and Lawrence buttressing the inference that the claimant’s employment at Estes Express was the predominant contributing factor to the claimant’s ongoing symptoms and need for surgery, we decline to reverse on appeal the trier’s assignment of liability to Estes Express. “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony…. The trier may accept or reject, in whole or in part, the testimony of an expert.” Tartaglino v. Department of Correction, 55 Conn. App. 190 (1999), cert. denied, 251 Conn. 929 (1999) (internal citations omitted).

We also note that the testimony of the claimant, when reviewed in its totality, serves to support the trier’s inference relative to the liability of Estes Express. There is no dispute that the claimant testified at trial that the employment at Estes and Lowe’s was “identical.” October 1, 2008 Transcript, p. 16. As mentioned previously herein, the claimant evidently also made a similar remark to Dr. Willetts while relating the history of the left shoulder injury at his second respondents’ medical examination. (See Respondents’ Exhibit 2, p. 9, August 18, 2008 Deposition Exhibit 2, pp. 1, 2, 4, 6, 11, 12, 13.) However, our review of the record clearly supports the inference that this observation by the claimant was directed at the nature of the two work situations rather than the intensity. Specifically, we reference the claimant’s testimony relative to the differences between the two employment situations vis-à-vis both the number of deliveries he was required to perform and the lifting requirements. In his testimony, the claimant stated that the delivery work load with Estes was double the number of deliveries he made for Lowe’s. October 1, 2008 Transcript, pp. 29-30. He also testified that at Lowe’s, he was not required to lift objects weighing more than fifty pounds whereas at Estes Express, he would occasionally have to lift windows or doors. Id., at 21, 22.

We find the claimant’s testimony detailing his respective duties at the two employers and the contrasting physical demands of each employment situation, coupled with the preceding discussion of the medical reports, sufficiently persuasive such that we decline to reverse the trial commissioner’s assignment of liability for the claimant’s ongoing shoulder symptoms and need for surgery to Estes Express. “Review of the record indicates that the commissioner’s determination was not based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 546 (1988). Therefore, the trial commissioner’s ruling must stand.

Respondent Estes Express has also raised as error the trial commissioner’s failure to conclude as a matter of law that Lowe’s was precluded from contesting liability for the claimant’s shoulder symptoms in light of its failure to file a Form 43 after the claimant filed a Form 30C on July 3, 2008 alleging a repetitive trauma injury to his left shoulder. The respondent predicates its claim on our Supreme Court’s holding in Harpaz, supra, wherein the court concluded that “under 31-294c (b)4, if an employer neither timely pays nor timely contests liability, the conclusive presumption of compensability attaches and the employer is barred from contesting the employee’s right to receive compensation on any ground or the extent of the employee’s disability.” Id., at 130.

Our review of this matter indicates that the trial commissioner, in a proper exercise of his discretion, clearly concluded the claimant was entitled to recovery based on the theory of the case advanced by the initial Form 30C filed against Estes Express on May 6, 2005. This timely Form 30C claimed workers’ compensation benefits for a discrete injury to the claimant’s left shoulder which occurred on April 30, 2005. As such, the second Form 30C, filed by the claimant against Lowe’s on July 3, 2008 asserting repetitive trauma as an alternative theory of recovery, was unnecessary. Given that this second Form 30C ultimately proved irrelevant to the trier’s determinations in the matter, we decline to address respondent Estes Express’ allegations of error relative to the issue of preclusion.

Finally, Estes has claimed as error the trial commissioner’s refusal to grant the corrections articulated in its Motion to Correct. Our review of this motion indicates that Estes was largely attempting to relitigate the matter in order to have the trial commissioner conform his findings to its view of the facts. However, when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002). In addition, given that “[t]he corrections sought [by the respondents] were not merely facts that were admitted or undisputed … no alteration to the factual findings is necessary.” Fratino v. Harry Grodsky & Co., Inc., 5087 CRB-7-06-5 (May 8, 2007), quoting Chesler v. Derby, 96 Conn. App. 207 (2006), cert. denied, 280 Conn. 909 (2006).

Having found no error, the Finding and Award dated October 16, 2008 of the Commissioner acting for the Second District is accordingly affirmed.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 We note that motions for extensions of time were filed and granted during the pendency of this appeal. BACK TO TEXT

2 A Form 30C is a “Notice of Claim for Compensation.” BACK TO TEXT

3 The Form 43 is entitled “Notice to Compensation Commissioner and Employee of Intention to Contest Employee’s Right to Compensation Benefits.” BACK TO TEXT

4 Section 31-294c(b) C.G.S. (Rev. to 2005) states, in pertinent part, that “[w]henever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the Workers’ Compensation Commission stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested…. If the employer or his legal representative fails to file the notice contesting liability on or before the twenty-eighth day after he has received the written notice of claim, the employer shall commence payment of compensation for such injury or death on or before the twenty-eighth day after he has received the written notice of claim, but the employer may contest the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim…. Notwithstanding the provisions of this subsection, an employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death. BACK TO TEXT

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