CASE NO. 5399 CRB-1-08-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 28, 2009
KEYSTONE PIPELINE SERVICES
TRAVELERS PROPERTY & CASUALTY
The claimant appeared pro se.
The respondents were represented by Kathleen Ready Smith, Esq., Law Offices of Charles G. Walker, 300 Windsor Street, P.O. Box 2138, Hartford, CT 06145-2138.
This Petition for Review from the October 31, 2008 Finding and Award/Dismissal of the Commissioner acting for the First District was heard April 24, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Randy L. Cohen and Christine L. Engel.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals from the dismissal of his claim for benefits which were above and beyond the scope of a Voluntary Agreement received by the Commission. The trial commissioner concluded after hearing all the evidence that the Voluntary Agreement, which awarded the claimant a 10% permanent partial disability of his cervical spine, properly compensated the claimant for his compensable injuries. Since the trial commissioner failed to find any credible or persuasive evidence for other injuries caused by the compensable accident, we must affirm this decision in the absence of legal error. Finding no errors of law, we affirm the Finding and Award/Dismissal and herein dismiss this appeal.
Prior to considering the specific facts in the Finding and Award/Dismissal we have an administrative issue to address. The respondents argue that pursuant to Practice Book § 85-1 this appeal should be dismissed for lack of diligence in pursuing this appeal. They assert prejudice in the manner this appeal has been pursued. Following the issuance of the trial commissioner’s decision the claimant filed a Petition for Review but did not file a Motion to Correct. While he was represented by counsel at the formal hearing, he brought this appeal pro se. The claimant in this matter submitted a Reason of Appeal that consisted of one sentence expressing his disagreement with the trial commissioner’s decision. He submitted a “brief” which was a one page statement dictated to an administrative staffer at this Board on the day it was due.
While we acknowledge the difficulties pro se claimants may have in advancing an appellate argument, and generally extend considerable leeway to such litigants, there must still be a reasonable effort to comply with the rules to enable this panel to take action. The appellant is expected to present a cogent explanation to the tribunal and the respondent prior to this board’s hearing that explains why the trial commissioner erred in their decision. Failure to do so makes an appeal subject to dismissal. See Rurak v. Sweet Life Inc., 4630 CRB-1-03-02 (February 6, 2004) and Bernier v. American Ref-Fuel Company of Southeast Connecticut, 4876 CRB-2-04-10 (December 23, 2005).
We find that the claimant’s statement, as transcribed by a staff member of this Commission, is simply insufficient to enable this Board to conduct a proper appellate review of the Finding and Award/Dismissal. Therefore, we grant the respondents’ Motion to Dismiss.
Even if we were to consider the merits of the claimant’s appeal, we would affirm the trial commissioner’s decision. The claimant made clear in his oral argument that he believes the trial commissioner reached an erroneous determination on the facts. On appeal however, we must accept the validity of the facts found by the trial commissioner, as there was no Motion to Correct filed in this matter. Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008).
The trial commissioner reached the following findings of fact. The claimant testified that on June 3, 1997 he was working for the respondent using a vacuum hose in a ditch. He testified the hose got disconnected from the truck it was attached to and hit him “all over the place.” The claimant testified that the hose, which was approximately ten inches in diameter, fifteen or twenty feet long, and filled with mud, fell on his neck and shoulders and knocked him down. The claimant further described his pain, saying his stomach felt “like a balloon,” he felt like he was bleeding inside, and he had pain in his neck, head, chest, stomach, low back, knees, and elbow.
The claimant and his supervisor, Dan Gorman, offered differing accounts of what happened after the accident. The claimant testified Gorman took him to an ambulatory care center. He also originally testified Gorman forced him to sign an accident report under duress, but later admitted he had not been forced to sign the report. The claimant said he did not begin treating for the injury until after he was fired by the respondent; but had been treating frequently at Hartford Hospital over the past ten years. The trial commissioner noted that both June 9, 1997 cervical and cranial MRIs and x-rays of the lumbar-sacral spine performed on June 22, 1999 yielded normal results.
Mr. Gorman testified that he had been working for the respondent on June 3, 1997 as their safety manager. He was aware the claimant was injured that day, but testified the hose in question was a 4-inch diameter lightweight corrugated hose. He said the claimant finished the day at work. He said the claimant at the time described the mechanism of injury as resulting from the hose having gotten stuck in the mud and that when the claimant attempted to pop it free of the dirt, he felt pain in his shoulder and neck. Mr. Gorman was unaware of any head injury. Mr. Gorman confirmed that the claimant had treated at the Windsor Ambulatory Center; but denied threatening to fire the claimant. After treating at the ambulatory center the claimant returned to light duty for a while but then would take himself out of work and did not produce any doctors’ notes supporting the absences. The claimant was ultimately terminated for these unsupported absences.
The claimant submitted extensive medical records, including a bill for service rendered on June 1, 1997, prior to the date of the accident. The records also reflect treatment on the date of the accident, notwithstanding the claimant’s narrative of being denied treatment. The trial commissioner also noted that the claimant had received a letter in 2000 from Dr. Darrin D’Agostino stating the claimant was “80-90% better” and, pursuant to notes at Hartford Hospital, had sought to have the letter rewritten to reflect only being 50% better. The claimant denied having asked for a rewritten letter.
The trial commissioner took administrative notice of the Voluntary Agreement received by the Commission on September 23, 2005 which purports to accept a cervical/thoracic strain on June 3, 1997 and further accepts a ten percent (10%) permanent partial disability of the claimant’s cervical spine based on a March 14, 2005 examination by William H. Druckemiller, M.D. The commissioner noted that due to a discrepancy in calculation of the claimant’s compensation rate the Voluntary Agreement had not been approved by the Commission. Claimant’s counsel represented at the hearing that the claimant had been paid permanent partial disability benefits under this agreement without prejudice. Dr. Druckemiller’s March 14, 2005 examination report attached to the Voluntary Agreement documented a ten percent (10 %) permanent partial disability rating of the cervical spine and supported a finding that a cervical and/or thoracic strain was compensable; but did not state the 1997 compensable injury was a substantial factor in the injury to any other body part. On the other hand, the claimant argued that the medical records from Hartford Hospital were supportive of a finding that injuries to the other claimed body parts were due to the compensable injury.
Based on this evidence, the trial commissioner concluded the claimant suffered a compensable accident on June 3, 1997 which caused cervical and thoracic strains. The commissioner also concluded the claimant suffered ten percent (10%) permanent partial disability of his cervical spine on June 3, 1997 and reached maximum medical improvement on or about June 3, 1998 based on Dr. Druckemiller’s report; which the commissioner found persuasive and credible. The trial commissioner did not find the claimant’s narrative as to the mechanism of his injury credible, nor did he find any reliable, credible, or persuasive medical evidence supporting compensability for injuries other than cervical and thoracic strain.1 Since the claimant did not meet his burden of persuasion, the claim for other injuries was dismissed.
While we can reverse a trial commissioner’s decision when it is unsupported by the evidence or inconsistent with the law, Neville v. Baran Institute of Technology, 5383 CRB-8-08-10 (September 24, 2009), the claimant in this matter is essentially seeking to retry the case on appeal. As we held in Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007) citing Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000), “[w]e may not retry a case on appeal and substitute our own findings for those of the trier.”
The trial commissioner concluded that the claimant’s testimony as to the mechanism of his injury and the extent of the injury was not credible. This is the trial commissioner’s prerogative Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008). The trial commissioner also found that the claimant failed to present “reliable, credible, or persuasive medical evidence” supporting the claim that his other injuries were due to the compensable accident. It is the trial commissioner’s job to weigh medical evidence. Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008), O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). We must respect his conclusions as to the evidence presented. The claimant has the burden of persuasion before this Commission. See Hernandez, supra, and Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006). The trial commissioner found as to the matters not covered in the Voluntary Agreement that the claimant failed in this endeavor. We do not find the trial commissioner’s conclusion “clearly erroneous.” Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006), Burns v. Wal-Mart Stores, Inc., 5343 CRB-7-08-5 (March 23, 2009).
Therefore, we affirm the Finding and Award/Dismissal in this matter. The appeal is dismissed.
Commissioners Randy L. Cohen and Christine L. Engel concur in this opinion.
1 We can clearly distinguish this finding from the finding which the Appellate Court in Diaz v. Pineda, 117 Conn. App. 619 (2009) found legally unsupported, thus ordering a remand of issue back to the trial commissioner. In Diaz, the Appellate Court found that a commissioner’s finding was clearly erroneous when it stated, “there is no other or corroborating evidence to establish his temporary total disability as he alleges.” The Appellate Court found that a report supportive of the claimant’s position had been submitted as evidence, and remanded for a consideration of this evidence. In Diaz, the Appellate Court noted the trial commissioner “did not state that any corroborating evidence was not credible, nor can we imply such a finding.” Id. In the present case, in Finding, ¶ E, the trial commissioner determined the evidence submitted by the claimant was “reliable, credible, or persuasive.” Since the trial commissioner acknowledged the submission of evidence, and determined its probative value, we must defer to his conclusions. BACK TO TEXT