CASE NO. 5697 CRB-2-11-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 5, 2012
BENNY’S HOME SERVICE, LLC
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by Alan K. Reisner, Esq., Butler Norris & Gold, Attorneys at Law, 254 Prospect Avenue, Hartford, CT 06106.
The respondent-employer Benny’s Home Service, LLC was represented by David A. Golas, II, Esq., Golas, Golas & Golas, PC, 945 Main Street, Suite 306, Manchester, CT 06040.
The respondent Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, PO Box 120, Hartford, CT 06141-0120.
This Petition for Review from the August 29, 2011 Findings and Dismissal of the Commissioner acting for the Sixth District was heard April 27, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Findings and Dismissal which determined that his back ailments were not the result of a compensable injury. The claimant argues that the weight of uncontroverted evidence supporting his position that a work injury caused his back ailments demonstrates the trial commissioner erred in dismissing this claim. We have reviewed the record and conclude the trial commissioner had a reasonable basis grounded in the evidence supportive of the Findings and Dismissal. We affirm the Findings and Dismissal.
The trial commissioner reached the following factual findings at the conclusion of the formal hearing. He noted the parties stipulated that the respondent-employer, Benny’s Home Service, LLC, was an uninsured employer on August 13, 2010, while employing the claimant. The claimant was paid an average weekly wage of $400.00 with a compensation rate of $277.05 per week.
The claimant testified that he came to the United States from Albania in August 2007 and shortly thereafter began working for the respondent-employer as a handyman and helper. This job entailed a great deal of lifting. On August 13, 2010, the claimant testified he was working with Benny (Bislim Djonbalak, owner of Benny’s Home Service) and his brother, Nazmi. The claimant met Benny at his house in West Hartford. They proceeded to a house nearby where they were building a fireplace. The claimant testified that he went with Benny and his brother to Hartford to buy stone for the job. The claimant said they did not find appropriate stones at the first location and therefore they went to a quarry in the mountains to search further. The claimant further testified that in order to reach stones that weighed about ten pounds for the fireplace, heavier rocks weighing about fifty pounds needed to be lifted and moved. The claimant testified that after working for about an hour at the quarry he heard a big crack in his back resulting in a great deal of pain which was of a kind that he had never experienced this before.
The claimant further testified that on a scale of one to ten the pain level was an eight while at the quarry. He also testified that he informed Benny and his brother that he had hurt his back. He continued working for about a half hour with pain but then stopped. After the truck was weighed the claimant said they left the quarry and returned to the house where the fireplace was being built. He said that although he was still in a lot of pain he needed to unload the truck. He said that Benny told him that once the unloading was completed that he should go home if he was unable to work. The claimant said the pain level was the same in West Hartford as it was at the quarry.
He further testified that a woman at the house where they were working asked what was going on and he informed her that he was in a lot of pain. The claimant testified that he laid down on his back at the work site for more than five minutes due to the pain. He then worked for another ten minutes before he no longer could work and therefore he left. He said the following day the pain was almost the same but he was able to move around a little bit better. However, on the following day, Sunday, the pain was the same or worse and he needed to ask his wife for help to move around.
The claimant presented to Hartford Hospital Emergency Department on August 15, 2010, where he was treated for low back strain. The records indicate the claimant related low back pain due to a lifting incident on Friday. The Hartford Hospital results as interpreted by Dr. Stuart Markowitz, MD, stated the claimant had “Degenerative disc disease at lumbosacral junction. No acute findings are evident.” Findings, ¶ 5. The next day the claimant was examined by Dr. Bhawani Ojha. The claimant advised Dr. Ojha he had severe back pain since August 13, 2010, and Dr. Ojha prescribed narcotic medication and prescribed an MRI of the lower back. The MRI disclosed moderately severe spondylosis at L4-L5 and L5-S1; along with a lateral disc protusion at L4-L5 and a disc bulge with central disc protrusion at L5-S1. The MRI also revealed a renal cyst in the upper pole of the left kidney.
The claimant was subsequently examined on September 7, 2010 by Dr. Chang S. Choi, an orthopedic surgeon. Dr. Choi diagnosed “severe low back pain syndrome” with spondylosis at L4-5 and L5-S1 level, with central to left paracentral disk and underlying tear of the annulus fibrosis at the L4-L5 level. Findings, ¶ 9. The claimant continued to treat with Dr. Choi until December 21, 2010. Dr. Choi recommended trigger point injections which the claimant initially declined but later received. The injection was of Lidocaine, Marcaine and Depo Medrol. Dr. Choi also prescribed Motrin, Flexeril, a Flector patch and intensive supervised physical therapy. Dr. Choi also suggested the claimant see a neurosurgeon. Dr Choi was of the opinion the claimant was totally disabled through December 21, 2010 and thereafter was given work restrictions of no heavy lifting, bending, twisting or sitting for long periods.
Dr. Choi retired in December 2010 and the claimant started treating with Dr. Vipul Dua, M.D., on February 4, 2011. Dr. Dua’s diagnosis was “Lumbar sprain with lumbar disk syndrome at L4-L5 and L5-S1.” Findings, ¶ 16. Dr. Dua advised the claimant to resume physical therapy for back strengthening and gave him a ten-pound lifting restriction and advised the claimant to see a neurosurgeon or a back specialist for possible epidural steroid injection. The trial commissioner noted Dr. Dua responded to a letter from the claimant’s attorney on March 9, 2011, and said “it is my medical opinion the patients current lumbar spine symptoms are a direct result of the 8/13/2010 incident in which he was lifting and moving heavy rocks at work.” Findings, ¶ 19. This letter was introduced as evidence at the formal hearing and counsel for the Attorney General’s office was given the opportunity to depose Dr. Dua or seek a clarification. Dr. Dua responded to written inquiry from counsel representing the Second Injury Fund (“Fund”)1 as follows:
a. He first examined the Claimant on February 4, 2011.
b. History was taken through an interpreter, the Claimant’s wife.
c. He gives great importance to the accuracy and detail of the history given by the patient.
d. He tries to give the benefit of the doubt to the patient.
e. The anomalies indicated in the Jefferson Radiology MRI report likely pre-exist the Claimant’s injury on August 13, 2010. The degenerative disk disease in the lumbar spine can exist without causing symptioms.
f. It was impossible for him to say whether or not the Claimant had back problems prior to the August 13, 2010 injury.
g. Back pain can be idiopathic, caused by degenerative conditions as well as caused by injuries.
h. Dr. Dua was not aware of the actual physical dynamics the Claimant used in lifting the stones/rocks and he recognized that actual dynamics play a role in the onset of back pain. Findings, ¶ 22.
The trial commissioner also took testimony from Benny Djonbalak and his brother, Nazmi. Benny Djonbalak testified he is the owner of Benny’s Home Services and on August 13, 2010 he planned to work only a half day because the claimant had another commitment to finish another job he was working on the side. Benny Djonbalak testified the claimant often worked side jobs on Friday afternoon. He testified that earlier that summer the claimant had left his employ for a few weeks but the claimant returned when he could not find enough other jobs. Benny Djonbalak corroborated the claimant’s account of having visited a quarry with him on August 13, 2010. He testified that the stones obtained were one to three inches in thickness and six to twenty inches in diameter and that he had not witnessed any injury to the claimant that day. He further testified that he had not seen the claimant lying on the ground in pain.
Benny Djonbalak further testified that the claimant first informed him that he hurt his back on Monday morning and did not advise his employer of the August 13, 2010 incident until his lawyer sent a letter to the respondent on August 30. Nazmi Djonbalak corroborated his brother’s testimony that the claimant had not told them he was hurt on August 13, 2010. He further testified that the rocks at the quarry which had to be moved were not large and that he observed the claimant throwing stones while at the quarry.
The homeowner of the premises where Benny’s Home Services was working on August 13, 2010 also testified. Gina Gaduk said during August, 2010 she did not see any workers injured on her property and she never saw the claimant lying on the ground. She also said she recognized the claimant and he had never complained of an injury; nor had she talked to anyone at the job that was injured or in obvious pain.
The claimant testified that after the August 13, 2010 accident he could not run and that he “never” ran with his son from his house to the bus stop. However, the trial commissioner noted that the respondents presented a surveillance tape (Respondent’s Exhibit 8) which shows the claimant walking very fast and/or running to the bus stop with his son.
Based on these subordinate facts the trial commissioner concluded that an employee-employer relationship existed between the claimant and the employer-respondent; and that the employer-respondent was uninsured for workers’ compensation. The trial commissioner found the testimony of the claimant to be not credible and the testimony of Ms. Gaduk to be credible. As a result he found the claimant failed to satisfy his burden of proof as to compensability and dismissed the claim.
The claimant filed a Motion to Correct. This motion sought to add findings based on medical evidence that the claimant had sustained a compensable injury on August 13, 2010. The trial commissioner denied this motion in its entirety. The claimant then commenced this appeal, based on his position that when there is “undisputed medical evidence” supportive of compensability that the trial commissioner is obligated to find the claim compensable. We do not find this argument consistent with the law. We also note that the trial commissioner noted deficiencies in the medical evidence which he cited in the Findings and Dismissal.
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). In order to find an injury compensable, a trial commissioner must determine not just that the claimant sustained an injury, but that this injury was sustained in the course of one’s employment. See Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). As we held in Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000), aff’d, 63 Conn. App. 482 (2001), cert. denied, 257 Conn. 905 (2001),
As the trier of fact, the commissioner is the sole individual vested with the authority to decide which, if any, evidence is probative, including the testimony of both lay and expert witnesses. Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 627 (1998), aff’d, 248 Conn. 379 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Even where an oral statement or a doctor’s report is not expressly contradicted, the trier may still draw inferences regarding its reliability from the demeanor of the witness, the overall consistency of the testimony, the presence or absence of corroborative empirical evidence, the nature and circumstances of the alleged injury, or any other element of the case that the factfinder deems significant. On review, this board does not have the power to second-guess a trial commissioner’s decision that a particular version of the facts is or is not credible. Freeman, supra; Perry v. Commercial Interior Systems, 3571 CRB-7-97-4 (June 3, 1998).
In the present case the trial commissioner heard the testimony of the claimant and determined he was not a credible witness. That is the prerogative of the trial commissioner. 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.
The Appellate Court recently restated the primacy of a trial commissioner in resolving issues of evidentiary credibility in Baron v. Genlyte Thomas Group, LLC, 132 Conn. App. 794 (2012). In Baron, the court opined as follows:
The commissioner, as finder of fact, is the sole arbiter of credibility; Samaoya v. Gallagher, 102 Conn. App. 670, 673–74, 926 A.2d 1052 (2007); and it is within the discretion of the commissioner ‘‘to accept some, all or none of the plaintiffs testimony.’’ Gibbons v. United Technologies Corp., 63 Conn. App. 482, 487, 777 A.2d 688, cert. denied, 257 Conn. 905, 777 A.2d 193 (2001).
Id., at 804.
We note that our precedent stands for the proposition that if a trial commissioner believes a claimant is not a credible witness, he may determine that any medical opinion which is reliant on the claimant’s narrative is 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). The trial commissioner noted that the primary medical evidence the claimant relied on for establishing causation of his back ailments were the opinions of his treating physician, Dr. Dua. See Claimant’s Exhibit R. If the trial commissioner did not accept the claimant’s testimony that he suffered a significant injury lifting rocks at a quarry on August 13, 2010 then he was not obliged to accept Dr. Dua’s opinions which were based on this testimony.
The responses Dr. Dua provided to the Fund’s counsel on March 24, 2011, subsequent to his initial March 9, 2011 opinion further supports the trial commissioner’s conclusions. Dr. Dua stated in his responses that his opinions were heavily reliant on the claimant’s narrative; that anomalies identified in an MRI were likely to predate the claimant’s incident at the quarry, and “[i]t was impossible for him to say whether or not the Claimant had back problems prior to the August 13, 2010 injury.” Findings, ¶ 22(f).2 Dr. Dua further suggested that back pain can be idiopathic, caused by degenerative conditions as well as caused by injuries. The trial commissioner could reasonably have concluded that subsequent to having his initial opinion on causation challenged by counsel that Dr. Dua’s opinion was no longer sufficiently reliable. “[I]t is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). In weighing such evidence, a commissioner must ensure that the opinions he or she relies on are not rooted in evidence based on “conjecture, speculation or surmise” DiNuzzo v. Dan Perkins Chevrolet Geo. Inc., 294 Conn. 132, 136-137 (2009).
The claimant argues that the respondent did not offer an alternative explanation for the claimant’s back ailments. The respondent is not obligated to do so. As the Supreme Court held in DiNuzzo, supra, “ . . . the humanitarian spirit of [the act] does not entitle the [court] to suspend the injured worker’s burden of proof, [or] to change the rules of our legal system so that the onus of disproving causation is thrust upon the [employer or the insurer].” Id., at 150-151. The trial commissioner’s findings indicate that the treating physician himself suggested the claimant’s ailments may have been degenerative or idiopathic in nature. The circumstances herein are similar to other cases when evidence presented at the formal hearing suggested an alternative cause for an injury other than a work-related incident. See Burns v. Southbury, 5608 CRB-5-10-11 (November 2, 2011), Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009) and Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006).
An alternative argument raised by the claimant is that factually this case is on all fours with Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670 (2003) and since the claimant’s back injury was within the realm of “common knowledge and human experience” there was less need to prove causation with expert medical testimony. We may easily distinguish Sprague and its progeny of cases (see Jodlowski v. Stanley Works, 5627 CRB-6-11-2 (March 13, 2012) and Lee v. Standard Oil of Connecticut, Inc., 5284 CRB-7-07-10 (February 25, 2009)) from the present case. In Sprague and the subsequent cases that relied on that precedent the claimant was found to be a credible witness. The claimant in this case was not found to be credible and a witness who refuted an arguably important part of his narrative, Ms. Gaduk, was specifically found to be credible. The claimant argues that Ms. Gaduk’s testimony was speculative and should not have been found reliable. The claimant also argues that “totality of competent evidence” supports compensability, noting in part the testimony of both Djonbalak brothers as to the claimant’s activities at the quarry. The claimant argues this corroborates his account. We find that the critical issue to the trial commissioner was not whether the claimant was at a quarry on August 13, 2010, but whether the claimant corroborated his account of sustaining an acute injury on August 13, 2010. Ms. Gaduk’s testimony could reasonably suggest he had not suffered such an injury and the trial commissioner found her testimony credible.
The claimant’s final argument is that when a claimant presents a sufficient quantum of documentary evidence that the claimant need not establish that he or she is a credible witness in order to receive an award. The claimant cites Bode v. Connecticut Mason Contractors, The Learning Corridor, 130 Conn. App. 672 (2011) for this proposition. We find Bode factually distinguishable and therefore are not persuaded by this argument. The dispute in Bode did not deal with the compensability of the claim as that issue had been resolved through a voluntary agreement. The Bode opinion essentially concluded the trier of fact had failed to properly weigh evidence as to the claimant’s entitlement to benefits under the Osterlund v. State, 135 Conn. 498 (1949) standard of temporary total disability. Id., at 679-684. The Appellate Court also determined that a trier of fact was not entitled to the same level of deference in evaluating the credibility of documentary evidence as he or she would be accorded in evaluating the credibility of live witness testimony. Id, at 685-686. The Appellate Court concluded the trial commissioner in Bode failed to properly credit undisputed documentary evidence and awarded the claimant temporary total disability benefits. Id., at 689.
The present case does not involve an already accepted claim for benefits; indeed, the respondents are challenging the presence of a compensable injury. The claimant’s narrative is a paramount element of establishing such an injury occurred. As a result, we find the circumstances herein more congruent to the elements of the Bode decision where the Appellate Court upheld the trial commissioner’s decision to deny benefits; the claim by Mr. Bode for psychiatric injuries. The Appellate Court affirmed the decision of the trial commissioner who found the claimant failed in his burden to prove that those injuries were caused by the accepted compensable injury. Id., at 689-691. In the present case, we find the decisive factor was the trial commissioner’s determination, after hearing live testimony, that the claimant was not a credible witness and the claimant’s injuries did not occur as he had described them. The trial commissioner also cited the testimony of Ms. Gaduk as credible and inconsistent with the claimant’s narrative. Bode does not cite Burton, supra, and does not alter long-standing precedent as to the prerogative of a trial commissioner to evaluate live testimony.
The claimant’s evidence did not, as a matter of law, compel the trial commissioner to award him benefits.3 We believe the Findings and Dismissal provides sufficient grounds justifying the trial commissioner’s decision herein. We therefore affirm the Findings and Dismissal.
Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur in this opinion.
1 The Second Injury Fund participated in the formal hearing due to the respondent-employer being an uninsured employer. BACK TO TEXT
2 We compare this case to Burns v. Southbury, 5608 CRB-5-10-11 (November 2, 2011) where we concluded after the physician the trial commissioner relied on was deposed by opposing counsel; the medical opinion on causation remained unwavering. BACK TO TEXT
3 We affirm the trial commissioner’s denial of the claimant’s Motion to Correct. 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). BACK TO TEXT