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Marino v. Cenveo/Craftman Litho, Inc.

CASE NO. 5448 CRB-5-09-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 16, 2010

GARY MARINO

CLAIMANT-APPELLANT

v.

CENVEO/CRAFTMAN LITHO, INC.

EMPLOYER

and

SPECIALTY RISK SERVICES

INSURER

RESPONDENTS-APPELLEES

and

SENTRY INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondents Cenveo/Crafting Litho, Inc. and Specialty Risk Services were represented by Margaret Crawford, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents Cenveo/Crafting Litho, Inc. and Sentry Insurance were represented by Laurie Moran, Esq., Maher & Williams, 268 Post Road, P.O. Box 550, Fairfield, CT 06824.

This Petition for Review from the March 9, 2009 Finding & Award/Dismissal of the Commissioner acting for the Fifth District was heard October 23, 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. This appeal is brought by the claimant, who was denied temporary partial disability benefits following a compensable injury. The trial commissioner determined that the claimant failed to prove that his loss of earnings was due to a work-related injury, and not due to a layoff prompted by general economic conditions. We find that the claimant had the burden of proof on this point, and the trial commissioner’s decision was supported by evidence which he found probative. Since an appellate panel cannot revisit such factual determinations we affirm the Finding & Award/Dismissal and dismiss this appeal.

The following facts were pertinent to the trial commissioner’s decision, dated March 9, 2009. The claimant had suffered a compensable work related bilateral carpal tunnel (hands) condition while working for the respondent Cenveo on January 28, 2005. Voluntary agreements were reached that set a permanent partial disability rating of 5% for each hand. The claimant subsequently asserted a right cubital tunnel (elbow) claim as a result of the compensable injury.

The claimant had worked in the printing business for about 35 years at the time of his 2005 injury. Following the injury he underwent bilateral carpal tunnel surgeries under the auspices of Dr. Michael Karnasiewicz, a neurosurgeon. The claimant recovered from the surgeries and was released back to work. Following non-compensable back surgery he again returned to work. His employer, however, laid off the claimant and a number of co-workers due to economic reasons in December 2005. He thereafter received a severance package and unemployment benefits.

The claimant sought a similar job to what he had been doing but was unable to find such a position. He eventually found a job as a youth counselor for a nonprofit organization. The claimant also began seeking a teaching certificate and “the program was approved by the Commission Division of Worker Retraining.” Findings, ¶ 10.

The claimant began experiencing right cubital tunnel symptoms in 2005 and 2006. He treated with Dr. Karnasiewicz who recommended a conservative approach to treatment. Dr. Karnasiewicz opined that the cause of the claimant’s right cubital tunnel problem was his work at the respondent. The respondent’s examiner, Dr. Duffield Ashmead, explained that he did not find the right cubital tunnel problem related to the claimant’s employment. The commissioner noted that medical records showed few problems with the left elbow and that claimant’s repetitive activities at work were substantial in nature and involved hands and elbows.

Based on these subordinate facts the trial commissioner accepted the claimant’s position that the right cubital tunnel injury was compensable, finding Dr. Karnasiewicz offered the more persuasive and credible opinion. The trial commissioner also approved 16.15 weeks of benefits under § 31- 308a C.G.S. The trial commissioner denied the claim for temporary partial disability benefits, finding that the claimant’s loss of earnings was due to a layoff which was unrelated to the compensated injury and noting that the impact of the cubital injury was not apparent until after the claimant was already laid off.

The claimant filed a timely Petition for Review but did not file a Motion to Correct until August 10, 2009, many months after the deadline to file such a motion. The trial commissioner denied the Motion to Correct. The claimant’s Reasons for Appeal appear to be contained within this motion. The claimant has pursued this appeal pro se seeking to have the commissioner’s decision on temporary partial benefits reversed. The claimant also seeks to have some attorney’s fees and credit card interest reimbursed, claiming these expenses were due to the respondent’s delayed acceptance of the carpal tunnel claim. He also seeks to have an August 7, 2009 letter from Dr. Karnasiewicz admitted as evidence. The respondents have moved to dismiss the appeal, citing noncompliance with the terms of Practice Book § 85-1.

The respondents assert they are prejudiced by the deficiencies in the claimant’s appeal, noting that the appeal documents were not submitted in a timely fashion and were not served upon them when they were filed with the Commission. They also believe that the claimant’s averments of error are vague and inhibit their ability to properly defend the appeal. We agree with the respondents and find our precedent in Rurak v. Sweet Life Inc., 4630 CRB-1-03-2 (February 6, 2004) and Bernier v. American Ref-Fuel Company of Southeast Connecticut, 4876 CRB-2-04-10 (December 23, 2005) governs this situation. As we explained in Claros v. Keystone Pipeline Services, 5399 CRB-1-08-11 (October 28, 2009) “[w]hile 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.”1

While we believe the procedural deficiencies in the claimant’s appeal were sufficiently material as to warrant a dismissal, were we to have considered the merits of the claimant’s appeal we would have affirmed the trial commissioner’s decision. We believe that the claimant is essentially seeking to have this panel retry the factual underpinnings of the commissioner’s decision, which is beyond our role as an appellate panel. Warren v. Federal Express Corporation, 4163 CRB-2-99-12 (February 27, 2001).

As for the specific issues identified by the claimant, we believe that we must reject his effort to admit the 2009 report of Dr. Karnasiewicz to the record. The claimant did not file a Motion to Submit Additional Evidence pursuant to Admin. Reg. § 31-301-9. Had such a motion been filed we do not believe the legal standards to admit such evidence are present herein. See Gibson v. State/Department of Developmental Services -North Region, 5422 CRB-2-09-2 (January 13, 2010) and Mallozzi v. Stop & Shop Companies, Inc., 5337 CRB-2-08-4 (March 4, 2009).

The claimant also makes a demand for reimbursement of legal fees. We find no evidence that a claim under § 31-300 C.G.S. or § 31-288 C.G.S. was presented to the trial commissioner alleging unreasonable delay or unreasonable contest on the part of the respondents. Therefore, we lack any means to consider this claim on appeal.

Finally, we turn to the issue of temporary partial disability benefits. The claimant asserts error from the denial of his claim for such benefits, arguing that due to his cubital injury he should be awarded these benefits. The trial commissioner credited evidence on the record that the claimant lost his printing job as a result, not of the injury, but due to a general layoff of staff at his employer. Findings, ¶ 19.2 The Appellate Court has stated the appropriate standard for deciding when a claimant can be awarded § 31-308(a) C.G.S. benefits. In Shepard v. Wethersfield Offset, 98 Conn. App. 682, 688 (2006) the court held,

The amount the plaintiff is able to earn after the injury should be limited to wages earned from Wethersfield, Offset Inc., or, if he is forced into another occupation because of his injury, wages realized from that substitute employment.

In the present case, the trial commissioner concluded the claimant was not “forced into another occupation because of his injury.” We believe that the trial commissioner could have reasonably concluded the claimant’s wage loss was the result of economic conditions and not his injury, and we must respect this factual determination.3

Therefore, we affirm the Finding & Award/Dismissal in this matter. The appeal is dismissed. Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 We compare this case with Rinaldi v. Tilcon Connecticut, Incorporated, 4981 CRB-3-05-7 (August 30, 2006). In Rinaldi citing Roussel v. Village Gate of Farmington, 4918 CRB-6-05-2 (February 28, 2006), we declined to dismiss an appeal for procedural deficiencies when it was appropriately commenced within the statutory time limitations. The respondents in the present matter have asserted prejudice from the procedural deficiencies and we find this argument meritorious. BACK TO TEXT

2 The claimant testified at the formal hearing his plant closed on December 14, 2005. September 29, 2007 Transcript, p. 22 and that he received a severance settlement on or about that time. Id., at 44-45. BACK TO TEXT

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