State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Serrano v. Bridgeport Towers Apartments, LLC

CASE NO. 5572-CRB-4-10-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 29, 2011

RAFAEL SERRANO

CLAIMANT-APPELLANT

v.

BRIDGEPORT TOWERS APARTMENTS, LLC

EMPLOYER

and

ACE USA/ESIS

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared without legal representation at oral argument. In the proceedings before the trail commissioner the claimant was represented by Janine M. Becker, Esq., Law Offices of Becker & Zowine, 3296 Main Street, P.O. Box 6468, Bridgeport, CT 06606-6468.

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

This Petition for Review1 from the June 28, 2010 Finding and Dismissal of the Commissioner acting for the Fourth District was heard May 27, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Christine L. Engel and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding and Dismissal of his claim seeking benefits for what he alleged was a work related injury. The trial commissioner concluded the claimant was not credible and dismissed the claim. On appeal the claimant argues that he should now be able to present additional evidence which he believes would demonstrate the injury was compensable. We do not find this request meritorious and we are not persuaded by the claimant’s arguments on appeal. We affirm the Finding and Dismissal and dismiss this appeal.

The trial commissioner found the following facts at the conclusion of the formal hearing. The claimant had been employed since 2003 as the superintendent of a building owned by the respondent Bridgeport Towers and was responsible in that capacity for moving and installing appliances, unclogging pipes, installing carpets and cabinets, and general maintenance duties. He testified he slipped and fell on September 19, 2008 when he was trying to fix a water leak at that premises. The accident was unwitnessed. He finished the job despite experiencing back pain, drove home with pain, and later had difficulty getting out of bed, eventually going to Bridgeport Hospital. Following his examination at Bridgeport Hospital he consulted with his family doctor, Dr. Randolph Ramirez, who referred him to Dr. David Brown, an orthopedic doctor, on September 22, 2008. Dr. Brown diagnosed the claimant with right-sided sciatica with a possible lumbar disc herniation.

The claimant testified that he called the building’s general manager, Yitchok “Tiny” Nesbaum of Brooklyn, N.Y., the Sunday night after the Friday evening accident and told him of the injury. He also testified he called Maria Nieves, an office manager whom he had hired, on Monday morning after the accident, told her he needed to be out of work, and faxed medical records to Mr. Nesbaum. The claimant said he returned to work after four days but needed to use a scooter to help him prepare the building for an inspection.

The claimant further testified that he originally did not tell Dr. Brown the injury was work-related as he did not believe the respondent had a workers’ compensation insurance policy, as they had not had such a policy years earlier when he suffered a prior injury. When the claimant needed additional medical treatment in 2009 which Blue Cross did not cover he said Mr. Nesbaum told him to file an initial claim of injury as the original injury had not been reported at the time. The claimant further testified he had settled a motor vehicle accident claim twelve or thirteen years earlier for back, neck, and left hand injuries, but was told he was a healthy person. He had not discussed that prior accident with his present doctors.

Mr. Nesbaum and Ms. Nieves also testified at the hearing. Mr. Nesbaum denied receiving a phone call about the claimant’s accident and said he was available over the phone on a seven day a week, 24 hour basis. He said that Connecticut Workers’ Compensation posters were visible at the building and that while there may have been an insurance coverage problem years earlier, this occurred before he was employed by the respondent. He said the first time he heard of the claimant’s injury was in May or June 2009 when the claimant told him he needed time off for a surgical procedure. He informed the insurance carrier he had no knowledge of an injury the previous September, after which the carrier denied the claimant’s claim. Ms. Nieves testified she had faxed medical records on the Monday after the accident and assumed they were in the claimant’s personnel file. She said she had been terminated from the respondent in February 2009. The trial commissioner noted that both the claimant’s Form 30C and the respondent’s Form 43 were filed with the Commissioner in June 2009.

The trial commissioner noted that Dr. Brown had opined on August 3, 2009 that within a reasonable degree of medical probability the injury he diagnosed on September 22, 2008 was consistent with a slipped (sic) and fall injury. He further noted that Dr. Brown had referred the claimant to Dr. Patrick Mastroianni, a neurosurgeon, who recommended on October 15, 2009 that the claimant undergo a decompressive laminectomy and discectomy at L5-S1 with pedicle screw stabilization and fusion. An MRI performed October 18, 2008 showed multi-level degenerative disc bulges at L3-4 and L4-5 and a broad-based central disc herniation at L5-S1 impinging on the left-sided S1 nerve root with a moderate degree of spinal stenosis. The assessment was of chronic, recurrent low back pain related to degenerative disc disease, spinal stenosis, and disc herniation without myelopathy but with pain. Medical information provided by the claimant to Dr. Brown and Dr. Mastroianni indicated he had no back pain or radicular symptoms prior to the work injury.

The trial commissioner also noted Dr. Ramirez’s report of September 20, 2008. That report stated the claimant “insidiously developed two nights ago severe pain in the right inguinal ligament area radiating the (sic) the thigh which was so severe, he went to the emergency room.” Dr. Ramirez’s report of September 22, 2008 states the claimant denies any history of trauma to account for the onset of symptoms.

Based on this evidence the trial commissioner concluded that neither the claimant nor Ms. Nieves were credible. He also found the claimant’s medical history as supplied to his treating physicians was incomplete and resulted in their opinion the claimant had no pre-existing back problem. Therefore, the trial commissioner concluded the claimant’s back pain was not the result of a compensable work injury and dismissed the claim.

The claimant filed a Motion to Correct which was denied in its entirety. He also filed a Motion to Submit Additional Evidence. The trial commissioner sustained an objection to admission of this evidence. The claimant, proceeding pro se, has advanced this appeal. His appeal is focused on two issues. He argues that his attorney erred in not obtaining an interpreter for the formal hearing as his English language skills are limited.2 He further argues that there were numerous evidentiary submissions which his counsel failed to submit for the record which would have substantiated his claim for benefits. This included a tape which purported to record a conversation between the claimant and the respondent’s building manager. The respondent, on the other hand, has filed a Motion to Dismiss citing procedural deficiencies in the manner in which the claimant has prosecuted the appeal.

We first wish to deal with the respondent’s Motion to Dismiss. We find this Motion does not challenge the subject matter jurisdiction of this panel to proceed as it does not allege this appeal was initiated in an untimely manner, see Stec v. Raymark Industries, Inc., 299 Conn. 346 (2010). The Motion challenges the sufficiency and timeliness of the claimant’s subsequent pleadings, citing Practice Book ¶ 85-1. We find, however, that by the time of oral argument before this Board the respondents were sufficiently apprised of the nature of claimant’s argument to enable them to advance a cogent defense and we have not been presented with persuasive grounds the respondents were prejudiced. Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009). We therefore deny the respondent’s Motion.

We also wish to consider the claimant’s Motion to Admit Additional Evidence. The trial commissioner denied this motion, but the claimant has raised this issue again on appeal. We are not persuaded this evidence was unavailable to the claimant and his counsel at the time of the formal hearing. As we pointed out in Gibson v. State/Department of Developmental Services-North Region, 5422 CRB-2-09-2 (January 13, 2010), this is a prerequisite to admitting such evidence.

The Appellate Court outlined the standard for review under Admin. Reg. § 31-301-9 when a party seeks to present previously unconsidered evidence directly to this panel. In Mankus v. Mankus, 107 Conn. App. 585 (2008) the court set out the following requirement.
Thus, in order to request the board to review additional evidence, the movant must include in the motion 1) the nature of the evidence, (2) the basis of the claim that the evidence is material and (3) the reason why it was not presented to the commissioner. Id., at 596.
In Mankus, the Appellate Court concluded that claimant failed to provide a sufficient explanation as to why the evidence should be admitted post-hearing. We followed a similar line of reasoning in Diaz v. Jaime Pineda a/k/a d/b/a J.P. Landscaping Company, 5244 CRB-7-07-7 (July 8, 2008). In Diaz we outlined the following requirement to consider evidence not presented at the formal hearing. A party who wishes to submit additional evidence to this board must prove that they had good reasons not to present such evidence at the formal hearing Carney-Bastrzycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004). The respondent Second Injury Fund (The “Fund”) points out that in Smith v. UTC/Pratt & Whitney, 3134 CRB 3-95-6 (June 4, 1996) we held the moving party in such a motion must establish the evidence could not have been obtained at the time of the original hearing. Gibson, supra, citing Grant v. Siemens Westinghouse Power Co., 5292 CRB-4-07-11 (October 28, 2008).

The claimant’s argument that this evidence in question should have been presented to the tribunal, but was not presented by his former counsel, therefore does not constitute grounds to admit evidence post-hearing. We are left to consider the record presented before the trial commissioner. The trial commissioner decided that the claimant failed to prove his injuries were the result of a work-related injury, which is his burden as a claimant under Chapter 568, see Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). This is a factual determination under which we must extend great deference to the trier of fact. Daniels v. Alander, 268 Conn. 320, 330 (2004). We cannot retry a case on appeal, Fair v. People’s Savings Bank, 207 Conn. 535 (1988), and may only intercede if we conclude the trial commissioner’s decision was arbitrary or capricious as delineated in In re Shaquanna M., 61 Conn. App. 592 (2001), or was “clearly erroneous” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).

The trial commissioner did not find the claimant or Ms. Nieves credible witnesses. As the commissioner observed their testimony, we cannot second-guess this conclusion on appeal Burton v. Mottolese, 267 Conn. 1, 40 (2003). We may also infer that the commissioner concluded the medical testimony supporting the claim was unreliable (see Conclusion, ¶ f) as the claimant had not proffered a full medical history to his treaters. 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). Given these concerns, we cannot overturn what was a factual finding by the trial commissioner that the claimant failed to sustain his burden of persuasion in this case.3

The Finding and Dismissal is affirmed. The appeal is dismissed.

Commissioners Christine L. Engel and Stephen B. Delaney concur in this opinion.

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

2 The claimant points to no decision made by the trial commissioner which impeded him from obtaining an interpreter. Therefore, we cannot address this situation on appeal, especially as a leading treatise on Chapter 568 points out our Act does not require that an interpreter be provided at the formal hearing. Carter, Civitello, et al. Connecticut Workers’ Compensation Law, § 21.5. Our review of the Transcript, pp. 5-61 and 72-93, does not indicate the claimant had difficulty responding to questions presented to him in English, and did not seek at any time to confer with anyone to explain a question or statement presented at the hearing. BACK TO TEXT

3 The claimant argues that as he was awarded social security disability benefits, he should also receive benefits under Chapter 568. This is not dispositive of the issues herein. “This board has stated on a number of occasions that the standards applied to determine whether to grant a social security disability award are considerably different than the standards we apply to award benefits under the Connecticut Workers’ Compensation Act.” Dzienkiewicz v. State/Department of Correction, 5211 CRB-8-07-3 (March 18, 2008), aff’d, 291 Conn. 214 (2009). BACK TO TEXT

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