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Feliu v. Eastern Connection Operating, Inc.

CASE NO. 5517 CRB-7-09-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 24, 2010

RICARDO FELIU

CLAIMANT-APPELLEE

v.

EASTERN CONNECTION OPERATING, INC.

EMPLOYER

and

COMMERCE AND INDUSTRY COMPANY/AIG CLAIM SERVICES, INC.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Charles S. Harris, Esq., Harris, Harris & Schmid, 11 Belden Avenue, 2nd Floor, Norwalk, CT 06850.

The respondents were represented by Lynn M. Raccio, Esq., Law Offices of Jack V. Genovese, II, 200 Glastonbury Boulevard, Suite 301, Glastonbury, CT 06033.

This Petition for Review from the December 7, 2009 Finding and Award/Dismissal of the Commissioner acting for the Seventh District was heard October 22, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO. CHAIRMAN. The respondents in this matter have appealed from a Finding and Award/Dismissal issued to the claimant. The respondents argue that there was an insufficient evidentiary foundation to support the award to the claimant for injuries sustained on May 17, 2007. Upon review, we are satisfied that the trial commissioner had a sufficient basis to justify her decision in this matter. We affirm the Finding and Award/Dismissal and dismiss this appeal.

The following facts are pertinent to our review of this appeal. The trial commissioner noted that the claimant had filed two Form 30C’s; one alleging a May 18, 2007 date of injury and the other alleging a March 2007 date of repetitive trauma injury. The claimant later stated the actual date of the May injury was May 17. The claimant began working as a driver for the respondent Eastern Connection on August 26, 2006. His job included loading and unloading boxes and other packages from the trucks. In March of 2007 the claimant verbally reported that he injured his right elbow while unloading tires off his work van; but filed no written report. On March 19, 2007 Jerold M. Perlman, M.D., examined the claimant and recommended physical therapy. Dr. Perlman ordered an MRI, and one was performed on April 23, 2007. The MRI revealed that the claimant sustained a partial tear of the ulnar collateral ligament. Dr. Perlman placed the claimant on light duty with a forty-five pound lifting restriction on April 30, 2007. The claimant feared losing his job so he continued to work full duty in spite of the medical restrictions.

The claimant testified that on May 17, 2007 he re-injured his right elbow when he was unloading boxes while working for the respondent. He filed a first report of injury form identifying the injury as having occurred when he was loading a heavy box onto his work van. The claimant was subsequently examined by Dr. Henry Anthony Backe, an elbow specialist. Dr. Backe concluded the claimant sustained an injury to his right elbow while lifting boxes at work. Dr. Backe recommended a course of physical therapy and placed the claimant out of work.

The claimant was examined on June 21, 2007 by Dr. Michael M. Lynch, an orthopedic surgeon. Dr. Lynch subsequently referred the claimant to Dr. Paul D. Protomastro, an orthopedic surgeon who has a particular expertise in upper extremity and elbow injuries. On June 29, 2007, Dr. Protomastro examined the claimant. The doctor reported that the claimant had chronic valgus instability of the elbow from medial collateral ligament tear and flexor pronator avulsion. The doctor recommended surgery, which the claimant declined to have performed at that time. In 2008 Dr. Perlman rated the Claimant with an 8-10% permanent partial disability. The doctor reported a March 2007 date of injury and a maximum medical improvement date of May 21, 2007. Dr. Perlman opined on September 3, 2008 that the claimant’s right elbow injuries were related to his employment.

Based on this record the trial commissioner concluded that the claimant offered credible and persuasive testimony that he suffered a work related elbow injury on May 17, 2007. She found the claimant’s testimony and evidence that he suffered a repetitive trauma injury in March of 2007 to be insufficient to support this claim. The trial commissioner rejected Dr. Perlman’s opinions as to the claimant suffering a permanent partial disability from the alleged March injury. On the other hand, the trial commissioner found the opinions of Dr. Perlman regarding the May 17, 2007 injury, as well as the opinions of Dr. Backe and Dr. Protomastro, persuasive and credible. The trial commissioner ordered the respondents to issue a voluntary agreement for the May 17, 2007 injury and to pay all medical expenses related to this injury.

The respondents filed a Motion to Correct focused primarily upon the fact that the claimant’s ligament tear was identified prior to the May 17, 2007 injury. The trial commissioner denied the Motion and the respondents have pursued this appeal.

The respondents’ argument on appeal is there was no credible or persuasive evidence that the claimant sustained a right elbow injury on May 17, 2007 or, in the alternative, there is no credible or persuasive evidence that the claimant’s present need for medical treatment is due to that incident. Respondents’ Brief p. 3-4. These arguments essentially go to the fact-finding prerogative of the trial commissioner. We may intercede only if the trial commissioner’s conclusion was “clearly erroneous” by lacking evidence, misapplying the law or reaching an improper inference. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).

In her findings the trial commissioner specifically found that the claimant offered credible and persuasive testimony that he was injured at work on May 17, 2007. The claimant testified at some length as to the mechanism of the injury. See December 18, 2008 Transcript, pp. 18-22. Counsel for the respondents cross-examined the claimant regarding this incident at the February 9, 2009 formal hearing. The claimant also presented a first report of injury form submitted immediately after the May 17, 2007 incident. See Claimant’s Exhibit D. We therefore find that claimant submitted substantial evidence which the trial commissioner found credible and persuasive that he did suffer a compensable injury on May 17, 2007.

We must also ascertain if the trial commissioner had sufficient probative evidence to find the claimant’s need for medical treatment is due to the compensable injury. The respondents place great weight on the fact that the claimant’s elbow ligament tear was identified in an MRI in April 2007, prior to the May 17, 2007 incident. See Claimant’s Exhibit B. We do not share the respondents’ position; however, that this constitutes an absolute bar to an award to the claimant. The trial commissioner did cite other evidence as supporting her decision, in particular, the reports and opinion of the claimant’s treating physician, Dr. Jerold Perlman.

Dr. Perlman’s reports indicate that the claimant’s elbow “apparently gave way” on May 17, 2007. On that date Dr. Perlman referred the claimant “to an elbow surgeon for possible repair of his injury.” While Dr. Perlman noted the April 2007 MRI identifying the claimant’s ligament tear, the results of that test did not lead Dr. Perlman to suggest at that time that the claimant be referred for surgical intervention. This determination appeared only as an immediate result of the May 17, 2007 incident. Dr. Perlman also responded in the affirmative to a September 3, 2008 inquiry from counsel that the “specific incident of May 17, 2007, as reflected in your notes, were, with reasonable medical probability, a substantial factor in procuring Mr. Feliu’s injuries.” Claimant’s Exhibit B.1

We note that Dr. Perlman’s opinions as to causation were rendered to the standard delineated in Struckman v. Burns, 205 Conn. 542 (1987) and relied on a physical examination performed of the claimant. While the respondents believe a pre-existing ligament tear is the source of the claimant’s medical condition, we have long deemed a work-related aggravation of a prior injury can be deemed compensable. As we stated in Marroquin v. F. Monarca Masonry, 5310 CRB-4-07-12 (December 19, 2008), aff’d, 121 Conn. App. 400 (2010), 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). In Marroquin, supra, we pointed out that an intervening event, such as an accidental injury definitely located as to time and place, may constitute a “new injury” for the purposes of Chapter 568.2

In addition, a trial commissioner may consider both the testimony of the claimant and the medical evidence in determining whether an injury was incurred during a claimant’s employment. In Ramirez-Ortiz v. Wal-Mart Stores, 5492 CRB-8-09-8 (August 25, 2010) we cited the Supreme Court’s recent opinion in Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010) that permits a trial commissioner to “consider medical evidence along with all other evidence to determine whether an injury is related to the employment.” Marandino, supra, at 595. The trial commissioner found the claimant credible and persuasive. That was her prerogative. Burton v. Mottolese, 267 Conn. 1, 40 (2003). The trial commissioner is solely responsible for the weighing of evidence, see Williams v. Bantam Supply Co., 5132 CRB-5-06-9 (August 30, 2007) and O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999), and we may not revisit this conclusion when we determine the trial commissioner relied on probative evidence in reaching her conclusion.3

We disagree with the central premise of the respondents that the trial commissioner did not have probative evidence to support her award. The claimant presented such evidence and the trial commissioner found it persuasive. As an appellate panel, we may not revisit such a determination. We affirm the Finding and Award/Dismissal issued to the claimant and dismiss this appeal.4

Commissioners Nancy E. Salerno and Amado J. Vargas concur in this opinion.

1 While the respondents clearly disagree with Dr. Perlman’s opinion, they failed to depose this witness or have him testify at the formal hearing. As we held in Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007) “‚Ķhaving forsaken their opportunity to challenge this evidence, as a result the respondents must accept the testimony ‘as is,’ as well as the permissible inferences which the trial commissioner drew from it.” BACK TO TEXT

2 See, for example, Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996), where the claimant asserted a work-related injury which aggravated a pre-existing condition. BACK TO TEXT

3 We also held in Ramirez-Ortiz v. Wal-Mart Stores, Inc., 5492 CRB-8-09-8 (August 25, 2010) “we must defer to the trial commissioner when it relates to whether he believes a witnesses’ narrative is consistent with the mechanism of injury.” Citing Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007) and Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006). We find this precedent on point. BACK TO TEXT

4 We uphold the trial commissioner’s denial of the respondents’ Motion to Correct. This motion sought to interpose the respondents’ conclusions as to the law and the facts presented. 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). BACK TO TEXT

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