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Walsh v. William W. Backus Hospital

CASE NO. 5691 CRB-2-11-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 15, 2012

TINA M. WALSH

CLAIMANT-APPELLANT

v.

WILLIAM W. BACKUS HOSPITAL

EMPLOYER

and

SENTRY INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Matthew-Alan Herman, Esq., Law Office of Alan Scott Herman, PO Box 663, Putnam, CT 06260.

The respondents were represented by Nicholas W. Francis, Esq., Law Office of Jonathan M. Zajac, LLC, PO Box 699, Avon, CT 06001.

This Petition for Review from the October 13, 2011 Finding and Dismissal of the Commissioner acting for the Second District was heard May 18, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding and Dismissal issued October 13, 2011, which dismissed the claimant’s claim that she sustained a compensable injury on August 30, 2010. The claimant argues that the trial commissioner failed to credit evidence supportive of compensability and the decision should be overturned. We find the trial commissioner’s decision was based on his evaluation of the claimant’s credibility and the persuasiveness of the medical evidence on her behalf. We may not second guess the decision of the trier of fact on such questions. We affirm the Finding and Dismissal.

The trial commissioner reached the following factual findings at the conclusion of the formal hearing. The claimant testified that she began working at the respondent as an oncology floor R.N. around February 2007. In approximately 1990, she testified she was diagnosed with fibromyalgia and experienced knee and joint pain, which required chronic pain management including a regimen of Oxycodone at least twice per day, anti-depressant medication and a non-steroidal anti-inflammatory. In the summer of 2009 she fell down four basement stairs in her home and experienced pain in her entire body, including both knees. She testified prior to the fall she experienced bilateral knee pain that was progressively getting worse and was aggravated by the fall. She mentioned the fall to her primary care physician but said her knee wasn’t really bothering her so she did not treat for the knee.

The claimant further testified she had some achiness and a little swelling in her left knee late in 2009. She treated with Dr. Daniel T. Glenney, M.D., of Norwich Orthopedic Group, P.C., who gave her a steroid injection in early 2010 and it worked well. She also had had a steroid injection to her right knee prior to the injection to her left knee, and after having both injections she never saw Dr. Glenney again for her knees. On the date of the alleged accident, the claimant said she was still taking Oxycodone morning and night and sometimes in between. She testified that she went to work on August 30, 2010, her left knee was “[g]reat. No problem.” Findings, ¶ j. At that time the claimant was working both for Backus Hospital and at Neurology Associates in Norwich.

On the date of the alleged injury, the claimant testified she was working at Backus Hospital at the nursing station and she said she sat in an office chair and it went all the way down to the floor. She said the chair was definitely defective. She said she was charting on the computer when a patient care tech told her that a patient needed her, so she got up rather fast from the “defective” chair and at that time felt a sharp pain in her left knee which immediately swelled up. She said her body was square to the desk when she was sitting and she did not know if she twisted her knee when she stood up. She said she vocally reacted to the pain and that her charge nurse, Sue Bean, turned around and looked at her. While Ms. Bean did not witness the incident the claimant said she told Ms. Bean that she could not put weight on her leg. The claimant said she went into another room and couldn’t pull her pant leg up, so she had to pull her pants down because of the swelling.

Following the incident the claimant testified Ms. Bean assessed her knee. Since it was hot, Ms. Bean thought she might have a blot clot and told her she needed to go to the E.R. A volunteer took the claimant in a wheelchair to the Backus Hospital Emergency Room. At the Emergency Room an x-ray was taken and she was given Ibuprofen, a metal brace and crutches; however, she was not able to use the crutches because of a previous wrist injury. The claimant was diagnosed with left knee effusion and internal derangement at the Backus E.R. She testified she saw an APRN at Concentra Medical Centers on September 1, 2010, and was told she needed to go to an orthopedic doctor. She testified she initially did not remember whether she gave Concentra her history of medical treatment or the fact that Dr. Glenney had previously treated her left knee. Subsequently she said she remembered she did give the information.

The claimant testified she subsequently was examined by Dr. Stephen F. Scarangella, M.D., an orthopedist, on September 10, 2010 and he put a cold compress on her knee and wrapped it. She could not recall if she gave Dr. Scarangella a complete history of her treatment with Dr. Glenney for her left knee because she assumed Dr. Scarangella knew her left knee history because he had treated her previously for a torn ligament in her hand. The claimant said she understood the necessity of providing an accurate medical history to Dr. Scarangella. Dr. Scarangella allowed her to return to work, but she returned for one day and was in a lot of pain. She believed Dr. Scarangella’s office put her on light duty but there was none available at Backus Hospital. She said she did not believe she lost any time at Neurology Associates after this incident, but looked for light duty work at the hospital and elsewhere.

Following the incident the claimant testified she saw Dr. Scarangella again on October 11, 2010, and he had not received authorization from the insurance company to obtain a MRI. She believed Dr. Scarangella put her out of work; however, she wanted to continue to work at Neurology Associates and she asked Dr. Scarangella to change her work status to light duty. She said an MRI was performed and she saw Dr. Scarangella on December 22, 2010. The results of the MRI showed a meniscal tear and a cyst with a lot of fluid and Dr. Scarangella wanted to do surgery. The insurance carrier did not authorize the surgery and the claimant said she had not seen Dr. Scarangella since December 22, 2010.

The trial commissioner noted the documentation contemporaneous with the alleged incident. The Concentra Medical Center’s intake form dated September 1, 2010, under the heading “HISTORY OF PRESENT ILLNESS” contained information that the claimant was seen in the emergency room after the alleged injury to her left knee; but did not mention any other previous medical treatment and diagnosis relative to the claimant’s knees. Dr. Scarangella’s office note of September 10, 2010 under the heading “PAST MEDICAL HISTORY” indicated “Otherwise unremarkable.” Findings, ¶¶ jj, kk.

Based on those subordinate facts the trial commissioner concluded the claimant failed to give an accurate, complete and truthful medical history to Dr. Scarangella. As such, his opinion regarding compensability was not persuasive. The trial commissioner found the claimant’s testimony was not credible and persuasive. The trial commissioner found that a compensable injury did not occur on August 30, 2010, and therefore the claimant did not satisfy the burden of proof that her claim was compensable. The trial commissioner dismissed the claim.

The claimant filed a number of post-judgment motions. She filed a Motion to Submit Additional Evidence, a Motion to Correct, a Motion to Reopen Finding, and a Motion for Articulation. The trial commissioner denied the Motion to Correct, the Motion to Reopen Finding, and the Motion for Articulation. The claimant has pursued this appeal. She believes that her post-judgment motions should have been granted and had they been granted, the medical evidence would have supported her argument that the August 30, 2010 incident was a compensable injury. The claimant argues that the Finding and Dismissal was “clearly erroneous” Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 666 (2006), and it lacked undisputed material facts and it must be overturned on appeal, citing Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). We are not persuaded by this argument.

On appeal, we generally extend deference to the decisions made by the trial commissioner. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004). The Compensation Review Board cannot retry the facts of the case and may only overturn the findings of the trial commissioner if they are without evidentiary support, contrary to the law, or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, Inc., 248 Conn. 379 (1999) and Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In addition, the burden of proof in a workers’ compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001).

Prior to considering the merits of this appeal, we must rule on the pending Motion to Admit Additional Evidence. The claimant argues that a report generated by Dr. Scarangella on November 9, 2011, contravening his treatment notes of September 10, 2010, should be admitted into evidence. The claimant argues there was good cause to submit this document now as it was not available at the time of the hearing and that it could not have been procured through the exercise of due diligence at an earlier time. We are not persuaded.

The Appellate Court established in Mankus v. Mankus, 107 Conn. App. 585 (2008), that when a litigant seeks pursuant to Admin. Reg. § 31-301-9 to present previously unconsidered evidence directly to this panel the moving party must establish good cause.

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.

We are not satisfied that the claimant could not have elicited this information from her treating physician prior to the closure of the record in this formal hearing. We believe admission of this evidence at this juncture would be “. . . an effort to try the case in an inappropriate piecemeal fashion. Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001).” Grant v. Siemens Westinghouse Power Co., 5292 CRB-4-07-11 (October 28, 2008). We therefore deny the Motion to Submit Additional Evidence.1 In addition, we note the similarities between this case and Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006). “One can only expect the trier of fact to render a decision based on what evidence actually says, not what it should have said.” Id.

The trial commissioner relied on Claimant’s Exhibit B in his decision. The treatment note from Concentra of September 1, 2010, specifically states the claimant “denies any history of previous knee injuries.” The commissioner found the claimant’s testimony at the formal hearing was inconsistent with this medical history provided to Concentra. The trial commissioner could reasonably find this evidence was unreliable. There is a substantial body of law concerning workers’ compensation in Connecticut supporting the authority of a trial commissioner to disregard evidence which he/she does not believe or does not find probative. In Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999) the Appellate Court held, “[t]he trier may accept or reject, in whole or in part, the testimony of an expert.” We have discussed the discretion of a trial commissioner to disregard evidence in a number of our cases. “Inconsistencies in the evidence must be resolved by the trier, and she may give credit to all, part or none of the testimony given by a lay or expert witness, while also retaining the authority to reject evidence that superficially may appear to be uncontradicted.” Gagliardi v. Eagle Group, Inc., 4496 CRB 2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004) (Per Curiam.) “This fact finding discretion entitles the trier to credit all, part or none of any doctor’s testimony, and to reject evidence that superficially appears to be uncontradicted.” Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002).

The trial commissioner also cited Dr. Scarangella ’s office note of September 10, 2010, stating the claimant’s medical history was “otherwise unremarkable” as grounds for finding his opinions unreliable. Counsel for the claimant asserts that this witness subsequently clarified his opinions and the failure to credit the witness’s opinion on causation constitutes reversible error. Claimant’s Brief, p. 8. We disagree. The November 1, 2010 letter which the claimant relies on responds to an October 15, 2010 letter from counsel to the witness which did not reference the fall at the claimant’s home which she had testified to at the formal hearing. While Dr. Scarangella said he now had a medical history from the claimant and counsel prior to opining on the causation of the claimant’s knee injuries, the trial commissioner clearly did not find it persuasive. We note that the claimant’s Motion to Correct focused on the November 1, 2010 letter of Dr. Scarangella. The trial commissioner denied this motion. We are bound by the precedent in Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (Per Curiam), where this tribunal held as follows:

When a party files a Motion to Correct this is an effort to bring factual evidence to the trial commissioner’s attention in an effort to obtain a Finding that is consistent with such facts. When a trial commissioner denies such a motion, we may properly infer that the commissioner did not find the evidence submitted probative or credible. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). On appeal, our inquiry is limited to ascertaining if this decision was arbitrary or capricious. Id. The leading case on this point is Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003).2

The trial commissioner found the claimant not to be a credible witness. This is his prerogative as the trier of fact. In Burton v. Mottolese, 267 Conn. 1 (2003) the Supreme Court indicated that this is a decision we may not revisit on appeal.

Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom. . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.”

Burton, supra, 40.

This determination of witness credibility means the trial commissioner may reasonably conclude any medical evidence which relied on the claimant’s narrative to be unreliable. See Baker v. Hug Excavating, Inc., 5443 CRB-7-09-3 (March 5, 2010); Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006), and 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). Consequently, the trial commissioner’s denial of the Motion to Correct was not arbitrary or capricious.

We also note that the claimant did not present evidence from any other witnesses to her accident. In such cases, if the claimant’s account is found unpersuasive the claim will fail. See Serrano v. Bridgeport Towers Apt., LLC, 5572 CRB-4-10-7 (September 29, 2011) and Smith v. Salamander Designs, Ltd, 5205 CRB-1-07-3 (March 13, 2008), Baker, supra, and Do, supra. We further note that our precedent in Do, supra, is dispositive of the claimant’s argument that the respondent was obligated to present its own evidence to contest the claimant’s narrative of injury. Similar to Do, the claimant’s own testimony offered grounds for the trier of fact to question her proposition that a workplace injury was the source of her present medical condition.

We finally address the claimant’s argument that her Motion to Reopen Judgment should have been granted. We do not find the “mistake of fact” standard of Marone v. Waterbury, 244 Conn. 1 (1998) is met in a case based on evaluating the claimant’s credibility, or when the claimant’s counsel is pursuing the sort of piecemeal litigation proscribed by Schreiber, supra.

We find the rationale of Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000), appeal dismissed, A.C. 21533 (2001), governs our decision. There we held, “[i]f the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.” The trial commissioner did not find the claimant’s testimony credible and as we find the medical evidence on causation reliant on this evidence, the trial commissioner could reasonably find the claimant failed in her burden of persuasion. We affirm the Finding and Dismissal.

Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur in this opinion.

1 See also Serrano v. Bridgeport Towers Apt., LLC, 5572 CRB-4-10-7 (September 29, 2011) and Gibson v. State/Department of Developmental Services-North Region, 5422 CRB-2-09-2 (January 13, 2010). BACK TO TEXT

2 This precedent is also dispositive of the claimant’s argument that the trial commissioner was obligated to reference and rely on Respondent’s Exhibit 4, the report of Dr. Peter R. Barnett. We may infer that since this evidence was brought to the trial commissioner’s attention in the Motion to Correct and he denied the Motion to Correct, that he did not find this evidence probative or persuasive. Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (Per Curiam.) BACK TO TEXT

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