State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Miller v. Thyssen Krupp Elevator

CASE NO. 5669 CRB-7-11-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 29, 2012

FRANKLIN T. MILLER, III

CLAIMANT-APPELLANT

v.

THYSSEN KRUPP ELEVATOR CORPORATION

EMPLOYER

and

CONNECTICUT GENERAL FIRE & CASUALTY COMPANY/GALLAGHER BASSETT SERVICES

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Ryan M. Henry, Esq., Guendelsberger Law Office, LLP, 28 Park Lane Road, New Milford, CT 06776.

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

This Petition for Review1 from the July 7, 2011 Finding and Dismissal of the Commissioner acting for the Seventh District was heard February 17, 2012 before a Compensation Review Board panel consisting of Commissioners Daniel E. Dilzer, Ernie R. Walker and Clifton E. Thompson.2

OPINION

DANIEL E. DILZER, COMMISSIONER. The claimant in this matter appeals from the July 7, 2011 Finding and Dismissal of the commissioner acting on behalf of the Seventh District. The appellant presents a number of issues for our review. The ultimate issue presented for our review is whether the trial commissioner erred in failing to award benefits to the claimant relating to an injury sustained on September 19, 2007.

The pertinent facts in this matter are as follows. The claimant alleges that on September 19, 2007, he injured his back when a step ladder upon which he was standing collapsed. There is no argument that the event occurred while the claimant was in the employ of the respondent. The issue is whether the respondent is legally liable for workers’ compensation benefits.

On its face, the issue at hand, whether the respondent is liable for benefits resulting from the September 19, 2007 work incident, is a rather routine determination requested of a commissioner. The instant matter, however, is complicated by the claimant’s prior medical history relating to his back.

The claimant alleges that on or about May 20, 2004, while at work he suffered a lifting injury to his back. The respondent filed a Form 43, wherein they put the claimant on notice that they were contesting the claimant’s claim. No timely written notice of claim was filed by the claimant nor were any of the constructive notice provisions of the workers’ compensation act satisfied. Therefore, the claim for benefits relating to the May 20, 2004 injury was untimely and barred by the Act’s statute of non claim. See § 31-294c(a). On or about June 12, 2006, while in the course of his employment, the claimant suffered a second injury to his back. Although this claim was timely filed it was not pursued.

In proceedings before the trial commissioner the respondent argued that the issue turned on whether the September 19, 2007 incident resulted in an injury that was materially and substantially an aggravation of a preexisting condition or whether it was a continuation of the 2004 injury which was barred by the workers’ compensation statute of non claim.

There was testimony before the trial commissioner reflecting that the claimant’s May 2004 injury occurred when the claimant was lifting tools. Thereafter, the claimant endured persistent back and leg pain. Following the 2004 lifting injury the claimant sought treatment with his primary care physician, Dr. Joseph Franceschina and a pain specialist, Dr. David Kloth. The claimant also treated with Dr. Dennis Ogiela, an orthopedic surgeon. The claimant was diagnosed as suffering from “lumbar degenerative disc disease and left sciatica.” Findings, ¶ 10.

As a result of the 2004 lifting injury the claimant lost some time from work, however, the claimant testified that the 2004 incident did not interfere with his ability to perform his job. Following the May 2004 incident Dr. Ogiela determined that the claimant had a modified work capacity and recommended that he avoid repetitive bending or lifting. Dr. Ogiela also prescribed medications and physical therapy. On May 26, 2004, the claimant again saw Dr. Ogiela and complained of “continued unrelenting pain radiating to his left leg.” Findings, ¶ 11. The claimant stated that the pain interfered with his ability to function at home and work. Dr. Ogiela discussed surgery with the claimant. The claimant indicated he did not want to pursue surgery and elected to undergo a course of pain management. Dr. Ogiela advised the claimant to continue his medication, physical therapy and to have an MRI.

On June 18, 2004, the claimant began pain management treatment with Dr. Kloth. Dr. Kloth administered an epidural steroid injection. In Findings, ¶ 12, the trial commissioner referenced Dr. Kloth’s diagnosis and quoted “Pre-op: Lumbar radiculopathy HNP (herniated nucleus pulposus), and degenerative disc disease. Post-op: Same.” Thereafter, the claimant underwent a series of epidural steroid injections from Dr. Kloth as well as a variety of other treatment modalities.3

In Findings, ¶ 26, the trial commissioner found:
On August 1, 2007, the claimant returns to Dr. Kloth for evaluation. His diagnosis sets forth “lumbar facet syndrome; lumbar spondylosis, radiculopathy, HNP (herniated nucleus pulposus) and degenerative disc disease. Kloth states that the claimant underwent a lumber facet diagnostic mapping procedure on July 18, 2007. He further recommends a lumbar radiofrequency facet denervation for the facetogenic component of the claimant’s symptoms.

The above referenced opinion dated August 1, 2007, from Dr. Kloth preceded the September 19, 2007 stepladder incident by less than two months.

On October 17, 2007, the claimant underwent an MRI. Dr. Joel Canter interpreted the MRI as revealing a “moderate-sized central and left-sided disc herniation at L4-L5. No other significant abnormality noted.” Findings, ¶ 29. On October 24, 2007, the claimant was again seen by Dr. Kloth. The claimant again complained of pain in his lower back radiating to his buttocks and down his left leg. Dr. Kloth noted the claimant’s complaints of ever increasing pain but also noted that the claimant was better than his exacerbation in September.

Dr. Kloth also disagreed with Dr. Canter’s report as to what the October 17, 2007 MRI revealed. Dr. Kloth was of the opinion that the MRI showed a “significant progression of his disease” and Dr. Canter’s report inadequately described the findings on the MRI. Dr. Kloth was of the opinion that the MRI revealed multilevel degenerative disc disease at; L2-3, L3-4, L4-5, and L5-S1. See Findings, ¶ 31.4

In 2009 Dr. Kloth opined that the claimant “suffered separate and distinct injuries in 2004, 2006 and 2007 and that the claimant’s injuries have materially and substantially worsened with each injury.” See Findings, ¶ 44. At the request of the respondents, Dr. Lawrence C. Schweitzer examined the claimant, relevant medical reports and images. Dr. Schweitzer opined that the 2004 injury was an injury from which the claimant never fully recovered and the 2006 and 2007 accidents “did little more than temporarily aggravate his symptom complex, but did not materially or substantially worsen his underlying disease.” See Findings, ¶ 41.

As the trial commissioner’s findings reflect, the claimant saw a number of physicians. In addition to the various physicians seen by the claimant for the purpose of treatment, referrals for treatment, and respondents’ examinations, the claimant was seen by Dr. Carl Dila in his capacity as the Commissioner’s Examiner. Dr. Dila is a neurosurgeon. Dr. Dila examined the claimant, reviewed reports and diagnostic imaging. He opined, inter alia, that the 2007 injury made the claimant’s back injury materially and substantially worse. See Findings, ¶¶ 53-60.

In short, the matter at hand exemplifies the classic situation where the trial commissioner is presented with conflicting evidence and expert opinions. The trier is expected to weigh the evidence, determine its credibility and then reach a conclusion. As part of the trier’s assessment of the weight and credibility to be accorded the evidence, the trier may accept or reject the evidence in whole or in part. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).

In the instant matter the trial commissioner determined that the resulting injury and disability suffered by the claimant following the 2007 injury were merely the natural progression of the time barred 2004 injury. Specifically, the trial commissioner found, “[t]he 2007 temporary aggravation resulted, at most, in a de minimis insult to the claimant’s previous disability and natural progression thereof.” See Findings and Conclusion, ¶ H.

We do not engage in de novo review. The claimant appellant raises a number of issues on appeal, however, the ultimate issue is whether the trial commissioner’s conclusion is without evidentiary support, is based on impermissible or unreasonable factual inferences contrary to law. We find no such error.

The appellant contends that the trial commissioner erred as she applied an incorrect proximate causation standard to the factual scenario. In Birnie v. Electric Boat Corp., 288 Conn. 392 (2008), our Supreme Court provided an evolutionary history of proximate cause standards under the Workers' Compensation Act. The Birnie court noted:

[I]n Norton v. Barton’s Bias Narrow Fabric Co., supra, 106 Conn. 364-65, this court expanded the scope of the requisite proximate cause analysis by determining that the “substantial factor” causation standard — as applied in tort law and as described by Judge Jeremiah Smith in “Legal Cause in Actions of Tort,” 25 Harv. L. Rev. 303, 309 (1912) — applies to workers’ compensation cases arising under the state act. The substantial factor standard was adopted not only to distinguish compensable injuries from those that are “merely contemporaneous or coincident with the employment,” but also to distinguish those injuries where the employment “play[s] a part of so minor a character that the law cannot recognize [it] as [a cause].” Norton v. Barton’s Bias Narrow Fabric Co., supra, 364-65. In Mahoney v. Beatman, supra, 110 Conn. 195, this court further explained the substantial factor standard: “Causes traced clear to the end which become of trivial consequences, mere incidents of the operating cause, may be, in a sense, factors, but are so insignificant that the law cannot fasten responsibility upon one who may have set them in motion. They are not substantial factors as operative causes. To be factors of this degree they must have continued down to the moment of the damage, or, at least, down to the setting in motion of the final active injurious force which immediately produced (or preceded) the damage.” (Internal quotation marks omitted.) See also Smirnoff v. McNerney, 112 Conn. 421, 425-26, 152 A. 399 (1930) (“[w]hatever the phrases we have used to qualify [the word ‘contribute’], the purpose has been to distinguish those negligent acts or omissions which play so minor a part in producing the injuries that the law does not recognize them as legal causes”). (Emphasis ours.)

Id., at 411-412.

Ultimately, the Birnie court stated that “[i]n accordance with our case law, . . . the substantial factor causation standard simply requires that the employment or the risks incidental thereto, contribute to the development of the injury in more than a de minimis way.” Id., 412-413. Clearly, the trial commissioner’s finding and conclusion in ¶ H, “[t]he 2007 temporary aggravation resulted, at most, in a de minimis insult to the claimant’s previous disability and natural progression thereof,” reflects her application of the appropriate proximate cause standard.

The claimant appellant argues that the trial commissioner’s conclusion in ¶ H is without support in the evidence. We disagree. Among the evidence admitted by the trial commissioner is the opinion of the respondent’s expert, Dr. Schweitzer. The record indicates that Dr. Schweitzer stated that the 2006 and 2007 incidents were temporary aggravations to the claimant’s underlying condition. The claimant centers one of his claims of error on Dr. Schweitzer’s failure to provide an opinion as to the temporal duration of the aggravating effects of the 2007 incident. We remind the appellant that the claimant carries the burden of proof.

Our review of the record from the formal hearing sessions indicates that claimant’s counsel was aware of the contents of Dr. Schweitzer’s report. See Claimant’s Exhibit E. See November 1, 2010 Transcript pp. 7, 22. Further during the course of the formal hearings, claimant’s counsel was reminded of the claimant’s right to depose Dr. Schweitzer. Claimant’s counsel undoubtedly weighed this option and decided not to depose Dr. Schweitzer. Whether the claimant’s deposition of Dr. Schweitzer and any questions posed pertaining to the temporal duration of the aggravation would have resulted in a conclusion more favorable to the claimant is an unknown. Cf. Sadosky v. U.S. Properties, Inc., 4751 CRB-2-03-11 (November 2, 2004). Nevertheless, the evidence in the record upon which the commissioner based her opinion was in some measure shaped by the claimant’s strategic decision not to depose Dr. Schweitzer.

Further we think the claimant may be laboring under the mistaken belief that once an expert opines that another incident is an “aggravation” of a prior physical condition it is ipso facto a “new” injury. See e.g., Epps v. Beiersdorf, Inc., 41 Conn. App. 430, (1996); Kelly v. Dunkin’ Donuts, 4621 CRB 4-03-2 (April 5, 2004). However, in Marroquin v. F. Monarca Masonry, 121 Conn. App. 400, 419 (2010), our Appellate Court stated:

[W]e simply cannot agree that the mere use of the word “aggravate” under these circumstances demonstrated a causal relationship .... “Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend [on] the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” Struckman v. Burns, 205 Conn. 542, 555, 534 A.2d 888 (1987).

We also note that there are other parts of the record that provide a different assessment of the etiology of the claimant’s symptoms. For example, in Findings, ¶ 19, the trial commissioner states; “On July 19, 2006, the claimant received another epidural steroid injection from Dr. Kloth. Kloth’s office note recommends disc surgery and lumbar facet blocks for the first time, although Dr. Ogiela offered surgery on May 26, 2004, some two years earlier.” As the trial commissioner stated, inter alia, in Findings,¶ 44, as of January 23, 2009 Dr. Kloth was of the opinion that “the claimant has suffered separate and distinct injuries in 2004, 2006 and 2007 and that the claimant’s injuries have materially and substantially worsened with each injury.”

In that same Finding the trial commissioner references Dr. Kloth’s opinion that the claimant’s MRI’s reveal a progressive worsening of the claimant’s condition. The trier finds, “[w]hile Dr. Kloth states that the claimant’s MRI’s have ‘slowly and progressively worsened’ his opinion is in conformity with Dr. Schweitzer’s opinion to the extent that he attributes the worsening condition to the progression of degenerative disc disease and not to any additional herniations.”

Additionally, the claimant contends it was error for the trier to conclude “that the claimant did not suffer an injury in 2007, when all three physicians opined that he in fact did suffer an injury.” Claimant’s Reasons For Appeal filed November 4, 2011. That may be so, however, whether the 2007 injury/incident was a substantial factor in producing the post May 2007 symptomatology is a determination within the purview of the trial commissioner. As this board stated in Fratino v. Harry Grodsky & Co., Inc., 5087 CRB-7-06-5 (May 8, 2007) “opinions expressed as to medical causation are not dispositive of the conclusions to be drawn as to legal causation. Colas v. Marriott Food Services, 9 Conn. Workers' Comp. Rev. Op. 86, 939 CRD-7-89-11 (February 26, 1991).”

The claimant also raises the issue that the trial commissioner erred in applying Sec. 31-349(a) and its “substantial and material” injury standard. We think this issue may be a bit of a red herring. Sec. 31-349(a) provides:

The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, “compensation payable or paid with respect to the previous disability” includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation. (Emphasis ours.)
Whether the trial commissioner erred in applying the above statute is immaterial.

She concluded that there was no subsequent (“second”) injury which combined with a previous disability to create an injury that was materially and substantially greater than the disability which would have resulted from the subsequent injury alone. In his appeal the claimant argues that the trial commissioner should not have applied § 31-349(a). However, as the factual predicate necessary to apply § 31-349(a) was not present in the instant matter, the reference to § 31-349(a) is harmless error.

Insofar, as the trial commissioner may have considered the application of the “eggshell plaintiff”5 theory to the instant matter again we find no error. It is a long standing principle of our Workers’ Compensation law that you take the claimant as you find him. Glenn v. Stop & Shop, Inc., 168 Conn. 413 (1975); Cashman v. McTernan School, Inc., 130 Conn. 401, 409 (1943); Hartz v. Hartford Faience Co., 90 Conn. 539, 543 (1916). Again as the May 2007 work incident was determined by the trial commissioner not to be a substantial factor in the resulting harm alleged to have been suffered by the claimant post May 2007, the proximate cause element was not met. See Findings and Conclusion, ¶ H.

The claimant also raises the issue of whether the trial commissioner erred in dismissing the claimant’s Motion to Correct on the basis that it was untimely.6 We note that the claimant submitted both a “Motion To Correct Finding and Award Dated July 7, 2011” and “Revised Motion To Correct Finding and Award Dated July 7, 2011” both of which appear to have been filed July 25, 2011. Putting aside whether or not the claimant’s Motion To Correct was filed timely, we have reviewed the claimant’s Revised Motion To Correct Finding and Award Dated July 7, 2011 and determined that the majority of the corrections sought are either; disputed, do not compel a different outcome or immaterial.

If we were to assume that the claimant is correct that the trial commissioner erred in her legal basis for denying the Motion(s) To Correct, the effect of such a ruling would prompt us to consider whether the trial commissioner’s denial of the Motion To Correct may be supported on some other legal basis. We, therefore, will review the appropriateness of the denial of the Motion to Correct on the basis of the tenets of review we accord to all such appeals on this issue. In Testone v. C. R. Gibson Co., 114 Conn. App. 210, 221-222 (2009), the court re-uttered the level of scrutiny to be applied to such reviews:

[T]his court, in D’Amico v. Dept. of Correction, 73 Conn. App. 718, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003), noted: “We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. . . . It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted. . . . A material fact is one that will affect the outcome of the case.” (Citation omitted; internal quotation marks omitted.) Id., 727-28. Thus, a motion to correct is properly denied when the additional findings sought by the movant would not change the outcome of the case. See Brinson v. Finlay Bros. Printing Co., 4307 CRB-1-00-10 (November 1, 2001), aff’d, 77 Conn. App. 319, 823 A.2d 1223 (2003); Fusco v. J. C. Penney Co., 1952 CRB-4-94-1 (March 20, 1997).

In paragraphs 2 and 3 of claimant’s Revised Motion To Correct Finding And Award filed July 25, 2011 he requests:

2. That Conclusion F be stricken from the record as it is not supported by the evidence, nor is it supported by the applicable law. For example, there are clear changes in the claimant’s MRI films taken between the 2004 injury and subsequent to the 2007 injury that were not caused by the natural progression of degeneration, and narrowing of the disk spaces. For example, the MRI films that preceded the 2007 injury did not show any evidence of an annular tear at a L5-S1. (Exhibit A, MRI film dated 8/24/06). However, shortly after the 2007 injury, another MRI was taken that showed an annular tear at L5-S1. (Exhibit A, MRI dated 10/17/07). . . .
3. That Conclusion G be stricken from the record as it is not supported by evidence or by the applicable law. Contrary to the Commissioner’s finding, the diagnostic films did find a new injury. Prior to the 2007 injury, no MRI film found evidence of an annular tear at L5-S1. (Exhibit A, MRI dated 8/24/06, B, C, D, E, F, G, H, I). However, the MRI taken after the 2007 incident clearly shows evidence of an annular tear at L5-S1. (Exhibit A, MRI dated 10/17/07). No physician opined that even if the 2007 injury did not occur, the Claimant’s symptoms would have increased in 2007, and he would have been prevented from working. (See Record). Instead prior to the 2007 injury, the Claimant was working and his symptoms were not as significant compared to following the 2007 injury. (Exhibit A, Hearing Transcript pgs. 11-15). Put simply, but for the 2007 injury, it is likely the claimant would have continued to work and would not have required the medical treatment he endured following the 2007 injury.

In support of the above, the claimant asserts that, Exhibit A, MRI dated October 17, 2007, showed there was an annular tear at L5-S1. Once again this is a fact that is in dispute. Exhibit A includes a report from Dr. Joel Canter for an MRI performed at Sharon Hospital on October 17, 2007. As noted in Findings, ¶ 29, it was Dr. Canter’s impression the MRI showed “moderate-sized central and left-sided disc herniation at L4-L5. No other significant abnormality noted.” Dr. Kloth read the MRI and reached a different conclusion from Dr. Canter. Thus, the correction sought by the claimant is disputed.

The claimant has also challenged the trier’s Findings and Conclusion, ¶ C stating:

The evaluation of the medical evidence in this case was complicated by the fact that the doctors involved had varying levels of understanding of the law of workers’ compensation causation. There also appeared to be some deficiencies in the records produced to Dr. Dila which affected his opinion, at least in part.

The above appears to be more of an expression of the trier’s frustration in her efforts at assigning the weight and credibility to be accorded the physicians’ medical opinions. While the trier’s sentiment may be one shared by many fact finders, it is generally not one that is expressly articulated. However, her comment in Findings and Conclusion, ¶ C is harmless error. We therefore conclude that the trier’s failure to grant the corrections sought is not reversible error. See Connors v. Stamford, 5484 CRB-7-09-7 (July 23, 2010) citing Wiseman v. Armstrong, 295 Conn. 94, 106 (2010).

In summary, a number and variety of expert opinions were offered and admitted into the evidentiary record. We will not disturb the conclusions reached by the trial commissioner on the basis of her assessment of the weight and credibility of the evidence submitted unless that assessment is an abuse of the trial commissioner’s discretion. As we have noted on a number of occasions “[a]n abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.” In re Shaquanna M., 61 Conn. App. 592, 603 (2001). We therefore affirm the trial commissioner’s conclusion that the claimant was not entitled to benefits as a result of the claimed September 19, 2007 work incident.

Commissioner Ernie R. Walker concurs with this opinion.

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

2 This matter was originally heard by the Compensation Review Board panel of Commissioners Daniel E. Dilzer, Ernie R. Walker, and Clifton E. Thompson on February 17, 2012. On May 18, 2012, prior to the panel’s consideration of this matter Commissioner Thompson passed away. BACK TO TEXT

3 See Findings, ¶¶ 13-15, 18, 19, 21, 23, 25, 28, and 32. BACK TO TEXT

4 Findings, ¶ 31 states:

Of considerable significance is Dr. Kloth’s disagreement with the MRI report of October 17, 2007. He feels the MRI represents a “significant progression of his disease” and that the report “inadequately describes the findings on the MRI.” Kloth opines that the MRI reveals multilevel degenerative disc disease at L2-3, L3-4, L4-5 and L5-S1, as well as degenerative changes at T12-L1. He states that there are small herniations at multiple levels and significant disc space narrowing at L4-5 and L5-S1, most significantly posteriorly in the disc space. At L5-S1 there is a right paracentral herniation with an associated annular tear. There is encroachment upon both nerve roots, more prominently at the right S1 nerve root than the left S1 nerve root. At L4-5 there is a broad based disc bulge with a central herniation. At L3-4, Kloth describes more normal maintained disc height but a broad based bulge. At L2-3 there is again a broad based herniation with bilateral foraminal components, more prominent towards the left lateral recess and left neuroforamin. Kloth believes that the most significant findings are at L4-5 and L5-S1 where the claimant has significant disc space narrowing with posteriorly narrowing of the disc space and more significant herniations. Kloth states that, the radiologist has completely missed the most significant disc herniation which is at L5-S1, which is a fairly decent sized herniation, and larger than the herniation at the L4-5 level. Dr. Kloth may have missed page two of the report where it sets forth the L5-S1 herniation. BACK TO TEXT

5 The “eggshell plaintiff” refers to the eggshell skull or thin skull line of tort cases. Those cases generally hold that a tortfeasor is liable for damages proximately caused by his tortuous act(s) even if the damages are greater than might ordinarily be foreseen due to some unique pre-existing health condition of the plaintiff. Stated another way and as noted in Iazzetta v. Nevas, 105 Conn. App. 591, 596 (2008) footnote 4:

“The eggshell plaintiff doctrine states that [w]here a tort is committed, and injury may reasonably be anticipated, the wrongdoer is liable for the proximate results of that injury, although the consequences are more serious than they would have been, had the injured person been in perfect health. . . . The eggshell plaintiff doctrine is not a mechanism to shift the burden of proof to the defendant; rather, it makes the defendant responsible for all damages that the defendant legally caused even if the plaintiff was more susceptible to injury because of a preexisting condition or injury. Under this doctrine, the eggshell plaintiff still has to prove the nature and probable duration of the injuries sustained.” (Citation omitted; internal quotation marks omitted.) Rowe v. Munye, 702 N.W.2d 729, 741 (Minn. 2005); see also W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 43, p. 292. BACK TO TEXT

6 We do have some concern for the trier’s dismissal of the Motion To Correct and the Revised Motion To Correct on the basis that it was untimely. In her denial the trial commissioner notes the following; “Motion late under the provisions of Workers’ Comp Reg. § 31-301-4, which requires filing of motion within two weeks of the filing of the underlying decision by the commissioner.” The regulation to which the commissioner refers is administrative regulation § 31-301-4 which provides the following:

If the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for, certified by the stenographer who took it, but if the appellant claims that substantially all the evidence is relevant and material to the correction sought, he may file all of it so certified, indicating in his motion so far as possible the portion applicable to each correction sought. The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.

(Effective June 24, 1980)

It is worth noting that since the enactment of Administrative Regulation § 31-301-4, the statutory authority for the regulation was significantly amended by Public Act 01-22. In that Act the legislature amended § 31-301(a). Sec. 31-301(a) provided, “At any time within ten days after entry of an award by the commissioner, . . . either party may appeal therefrom to the Compensation Review Board...” Public Act 01-22 extended the time for filing appeals from ten days to twenty days.

Under the earlier version of § 31-301, an appellant had four days beyond the ten days for filing an appeal in which to file a motion to correct with the trial commissioner. In the instant matter the trial commissioner rendered her decision on July 7, 2011. The motions to correct were filed in the seventh district office on July 25, 2011. Thus, the motions to correct were arguably filed within the timeframe that would appear to accord with the deadline for filing appeals.

Put another way, we’re not certain we see the wisdom in holding an appellant to a two week deadline for filing a motion to correct when the period for filing an appeal has been extended from ten days to twenty days. However, concluding as we have we believe our review of the motions to correct accords the appropriate level of appellate scrutiny. BACK TO TEXT

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