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Ayna v. Graebel/CT Movers, Inc.

CASE NO. 5452 CRB-4-09-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 21, 2010

MUSLUM AYNA

CLAIMANT-APPELLANT

v.

GRAEBEL/CT MOVERS, INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by John T. Bochanis, Esq., Daly, Weihing & Bochanis, 1776 North Avenue, Suite 710, Bridgeport, CT 06604.

The respondents were represented by Timothy Ward, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review1 from the March 18, 2009 Finding and Decision of the Commissioner acting for the Fourth District was heard January 29, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jack R. Goldberg and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from a Finding and Decision which determined that he had a work capacity and approved two Form 36’s submitted by the respondents. The claimant argues among other claims of error that the evidence before the trial commissioner would not support the finding that he had a work capacity. The trial commissioner, however, did not find the claimant credible and cited testimony from the respondents’ expert witness finding the claimant had a work capacity. Since we find the trial commissioner’s decision was based on the weight of evidence we affirm the Finding and Decision and dismiss this appeal.

The trial commissioner reached the following findings of fact at the conclusion of the formal hearing. The claimant suffered a compensable neck injury on or about April 6, 1998. A Voluntary Agreement was reached for this injury. The commissioner took administrative notice of two Form 36’s filed by the respondents in 2003. In 2003 the claimant was examined by Dr. William S. Lewis, who reported that prior surgeries were “in excellent position” and showed “excellent fusion”. One of the surgeons, Dr. Patrick P. Mastroianni examined the claimant in 2003 and 2004. He reported that the claimant was temporarily totally disabled but at that time there was no further need for surgical intervention. On December 2, 2004 Dr. Mastroianni reported that the claimant had “considerable calcification” at C5-6 and “modest degenerative changes” at C4-5. An October 4, 2005 MRI found degenerative disc disease at C5-6 with bulging of the disc.

The claimant was examined twice by Dr. Michael Karnasiewicz, those examinations occurring on July 24, 2003 and August 31, 2004. In 2003 Dr. Karnasiewicz found the claimant’s spine had “successfully fused at both levels” and that “he has reached his point of maximum medical improvement and he is capable of light work.” Following the 2004 examination Dr. Karnasiewicz opined “I continue to believe that the patient has a light work capacity as outlined in my previous independent medical examination.” Dr. Karnasiewicz further opined that the claimant had reached maximum medical improvement as of July 24, 2003, with a light duty work capability. He also opined that after review of Dr. Mastroianni’s operative report and review of the x-rays that he believed that the claimant had had a successful fusion.

The trial commissioner also considered evidence from lay witnesses as to whether the claimant was disabled. The claimant testified at the formal hearing and said he did not perform any work subsequent to 2001. Finding, ¶ 15. He offered a narrative of his activities in Louisiana during 2005 and 2006. He said he received checks from a legislator, State Senator Cleo Fields, cashed them, and gave the cash to a gentleman named Ibrahim Cayir. Finding, ¶ 16. The claimant said he acted only as an interpreter for the tile job which Mr. Cayir performed in Louisiana. Finding, ¶ 17. He also testified that while he had been divorced from his ex-wife, Charlotte Ayna in January of 2005, he had still continued contact and communication with her after the divorce. Finding, ¶ 18.

Ms. Ayna testified the claimant went to Louisiana to do work for Senator Cleo Fields. Finding, ¶ 19. Senator Cleo Fields testified that he gave the claimant two checks in the amounts of $1,561 and $3,000. Finding, ¶ 20. Ms. Ayna further testified that the claimant serviced vending machines from 2003 to 2006, and that she accompanied the claimant in servicing these machines. Finding, ¶ ¶ 21-22. The trial commissioner also noted the claimant’s cell phone records indicated that he spent extensive amount of time between 2003 and 2006 outside the state of Connecticut; spending much time in 2005 and 2006 in Louisiana. Finding, ¶ 23.

Based on these subordinate facts the trial commissioner concluded the claimant’s testimony was not “fully credible and persuasive.” He also found Dr. Mastroianni’s opinions and reports were not fully credible and persuasive. The trial commissioner found the testimony of Ms. Ayna was fully credible and persuasive and found the testimony, opinions and reports of Dr. Karnasiewicz as fully credible and persuasive. He found Dr. Karnasiewicz opined that the claimant had a light duty work capacity and had reached maximum medical improvement.

Therefore the trial commissioner approved the Form 36 filed on September 10, 2003 and the Form 36 filed on November 17, 2003 effective as of the date of their filing. The commissioner found the claimant capable of light duty work and had reached maximum medical improvement. The commissioner also denied the claimant’s bid for benefits pursuant to § 31-300 C.G.S.

The claimant filed a Motion to Correct. This motion was denied in its entirety. The instant appeal was pursued before this panel.

The claimant asserts a large number of errors were committed by the trial commissioner during the course of the proceedings. The claimant appears to claim that the trial commissioner should have given weight to the decision of a prior trial commissioner, George Waldron, who decided to deny a Form 36 at a prior hearing. The claimant argues that the trial commissioner improperly concluded that the claimant had a light duty work capacity. The claimant also alleged it was improper for the trial commissioner to conclude the claimant had reached maximum medical improvement. The claimant also argues that his Motion to Correct should have been granted, including his demand for benefits owing to undue delay. We find none of these arguments persuasive.

The respondents frame this case as essentially a dispute as to the credibility of witnesses and a dispute as to the weight to be given medical evidence and therefore, as per Fair v. People’s Savings Bank, 207 Conn. 535 (1988), this panel cannot retry the case. We find the respondents’ view of this case more compelling.

A review of the evidence herein indicates the trial commissioner weighed a variety of evidential submissions; both in the form of written evidence from medical reports and in the form of live testimony before him. The claimant believes the trial commissioner “completely ignored” evidence supportive of total disability. Claimant’s Brief, p. 14. However, we believe that after considering the totality of evidence presented that the trial commissioner could have reasonably found the claimant was an active individual capable of remunerative labor.

We acknowledge that the claimant’s treating physician, Dr. Mastroianni, opined that the claimant was totally disabled and had not reached maximum medical improvement. The trial commissioner did not ignore these opinions, but found them not “fully credible and persuasive.” Finding, ¶ G. In reviewing this conclusion we cannot usurp the role of the trial commissioner, who has the “function to assess the weight and credibility of medical reports and testimony. . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999).

The trial commissioner instead found the respondents’ expert, Dr. Karnasiewicz “fully credible and persuasive.” Finding, ¶ I. The claimant cites the case of Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006) in his brief. Claimant’s Brief, pp. 6-7. We note that Dellacamera stands for the proposition “[w]e must defer to the factual findings of the trial commissioner in such ‘dueling expert’ cases.” Id. In the present case Dr. Karnasiewicz offered consistent testimony that the claimant had reached maximum medical improvement and had a light duty work capacity. Findings, ¶ 25-28. Dr. Karnasiewicz testified at length in a July 14, 2005 deposition. Respondents’ Exhibit 4. Dr. Karnasiewicz stood by his previous opinions that the claimant had reached maximum medical improvement and had a light duty work capacity. Id, pp. 15-17. The claimant argues that subsequent surgeries suggest the claimant was not at maximum medical improvement. Claimant’s Brief, p. 14. However, these surgeries were performed many years subsequent to the respondents filing of the Form 36’s and this issue goes to the weight of the evidence considered by the trial commissioner. The claimant offers no argument that the evidence presented by Dr. Karnasiewicz did not constitute probative evidence as to the claimant’s condition during the period in which the respondents sought to cease making total disability benefit payments. Pursuant to Dellacamera we must respect the trial commissioner’s conclusions.2

We also look to the trial commissioner’s conclusion that the claimant was not a credible witness. Many of the trial commissioner’s findings indicate that he did not believe the claimant’s denial that he had worked while in the state of Louisiana, or the claimant’s denial he had worked refilling vending machines. We note the claimant does not dispute testimony by State Senator Fields that he paid the claimant money. The claimant argued that this was not paid for performing work and he gave the money to an associate, Mr. Cayir. Nonetheless, the claimant says he acted as a translator in Louisiana for this associate who did not speak English. August 7, 2008 Transcript, p. 57.3 We believe our holding in Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010) addresses this issue.

The trial commissioner in the present action specifically found the claimant “less than credible.” This is dispositive of the appeal. We cannot revisit a trial commissioner’s determination of credibility when witnesses present testimony for his consideration. Burton v. Mottolese, 267 Conn. 1, 40 (2003). While the claimant went to great lengths to prove that the respondent was not credible, this was not the critical issue in this case. The appellant in Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007), pursued this strategy, and we held that when two parties offer mutually inconsistent testimony, it is the commissioner’s prerogative to find one narrative credible. Even if the claimant proved the respondent was less than credible, this would not have established the existence of an employer-employee relationship. As we held in Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB 6-07-7 (July 22, 2008), when neither party before the tribunal is credible the claim must be dismissed.4

Conversely the claimant goes to great lengths to argue that his ex-wife, Charlotte Ayna, should not have been found to be credible by the trial commissioner. Ms. Ayna had testified the claimant had worked subsequent to 2001, contrary to the claimant’s testimony. Since the trial commissioner is the sole person responsible for determining witness credibility, Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008) we cannot consider this argument on appeal.

In reaching this decision, we find the case similar to a number of recent cases where the claimant asserted he was still totally disabled as a result of a compensable injury and the trial commissioner did not accept his testimony, finding the testimony of the respondents’ expert witness more persuasive. See Smith v. Federal Express Corporation, 5405 CRB-7-08-12 (December 1, 2009) and Clarizio v. Brennan Construction Company, 5281 CRB-5-07-10 (September 24, 2008). Considering the trial commissioner’s factual findings, we believe a similar result must be upheld in the present case.

We now turn to the denial of the claimant’s Motion to Correct. As pointed out in Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008) on appeal we must extend deference to such decisions and appellate review is generally limited to determining if the commissioner’s actions were “arbitrary or capricious.” In re Shaquanna M., 61 Conn. App. 592 (2001). When a trial commissioner denies proposed corrections, we must infer he did not find the evidence provided by the claimant either probative or persuasive. Jacobson v. General Dynamics Corp./Electric Boat Division, 4642 CRB-2-03-3 (March 12, 2004). The trial commissioner in this matter did not find the claimant credible, and may well have concluded any medical evidence which relied on the claimant’s statements was also unreliable. 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). Most recently in Brockenberry, supra, we restated the precedent in Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003) that when a trial commissioner denies a Motion to Correct, we must infer he did not find this evidence probative or credible.

On the specific issue of § 31-300 sanctions such an award is left to the discretion of the trial commissioner. Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008). Since the respondents prevailed on material issues before the trial commissioner we find no error in the denial of this claim. Christy v. Ken’s Beverage, Incorporated, 5157 CRB-8-06-11 (December 7, 2007).

At its essence, the claimant’s appeal is based on his belief that his evidence should have been credited and the respondents’ evidence should not have been. To intercede in this fashion would place our panel at odds with the precedent in Fair, supra.

We find no error and affirm the Finding and Decision.

Commissioners Jack R. Goldberg and Christine L. Engel concur in this opinion.

1 We note that a postponement and extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 We also believe that issue raised as to the prior commissioner’s ruling on a Form 36 dated September 24, 2003 is immaterial to the present action. The commissioner’s Finding indicates that at that hearing Dr. Karnasiewicz did not present a report or any testimony. The Form 36 considered at that hearing was dated November 4, 2002. We cannot give binding effect to a prior proceeding in which the issues and evidence were substantially dissimilar to the present hearing. In Howard v. CVS Pharmacy, Inc., 5063 CRB-2-06-3 (April 4, 2007), we pointed out that even when a Form 36 has been approved, it may be reopened upon a change of circumstances and the presentation of substantial evidence citing Papa v. Jeffrey Norton Publishers, Inc., 4486 CRB 3-02-1 (February 25, 2003). BACK TO TEXT

3 We believe the trial commissioner could reasonably infer from the evidence on the record that the claimant was paid for his translation services. If the record established this was an “occupation he might reasonably pursue” Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007), then the claimant failed in his burden to establish that he was still temporarily totally disabled as of that date. Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009). BACK TO TEXT

4 The claimant argues that in cases such as Dellacamera v. Waterbury, 4966 CRB-5-06-6 (June 29, 2006) and Howard v. CVS Pharmacy, Inc., 5063 CRB-2-06-3 (April 4, 2007), we indicated that a trial commissioner may consider whether a claimant can maintain the “tenets of employability” in determining whether or not the claimant has a work capacity. We note that in Dellacamera and in Howard the claimant was found to be a credible witness. The claimant in the present case was not found to be credible. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: August 13, 2010

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