Cable v. BIC Corporation

The claimant was represented by John D’Elia, Esq., Kennedy, Johnson, D’Elia & Gillooly, Long Wharf Maritime Center, 545 Long Wharf Drive, New Haven, CT 06511.

The respondents were represented by Kevin Maher, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the July 16, 1996 Finding and Dismissal of the Commissioner acting for the Third District was heard April 4, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 16, 1996 Finding and Dismissal of the Commissioner acting for the Third District. She argues on appeal that the trier erred by concluding that her right shoulder and elbow injuries were not compensable, as the factual findings and the medical evidence, including a § 31-294f examination, supported her claim. We affirm the trial commissioner’s decision.

The claimant initially sustained compensable injuries to both hands as a result of repetitive trauma while employed with the respondent on November 10, 1989. Liability was accepted by the insurer, which paid the claimant permanent partial disabilities of 15.5% on the left master hand and 8.5% of the right hand. In her decision, the trier reviewed the claimant’s job duties that led to this injury and the various reports of the doctors who treated her. She noted that the claimant’s symptoms were confined mainly to her right hand and her left thumb, which was operated on in October 1991. The claimant was totally disabled after that surgery until January 20, 1992. There were no documented complaints of neck, right shoulder or bilateral elbow pain in the reports of any of the doctors who treated her up to that point.

The claimant worked in a light duty position for the first six months of 1992. After more surgery was performed on her left thumb, she was disabled until September 14, 1992, when she again returned to light duty, scooping lighter caps into a bag. She claims that she noticed right elbow pain almost immediately, and took a brief medical leave of absence. Her treating physician, Dr. Rago, examined her for this pain and diagnosed right lateral epicondylitis, but could not understand how she had sustained this injury, as he had personally witnessed her job duties. He further noted that she was unhappy discussing her work situation, as she preferred to remain out of work. She returned to work in another light duty position in October, but by December 1992 there was no longer suitable work available for her at Bic. She received temporary partial disability benefits while looking for work during the next four months.

The claimant was examined by Dr. Tross in January 1993. He noted her complaints of right thumb and elbow pain along with her left hand symptoms, but found upon examination that she had normal neck, shoulder and elbow motion, with only mild tenderness in two spots. He made no diagnosis of bilateral epicondylitis, right shoulder or cervical pathologies. In April, 1993, the claimant returned to the “point to support” job she had held between 1981 and 1988 at Bic, although three of the five machines she had previously operated had been removed from the plant. She claims that she noted right elbow and right shoulder problems around July 1993, as well as pain in her left elbow. The office notes of Dr. Rago for visits in July, October, and December 1993 do not document complaints of neck, bilateral elbow or right shoulder pain. Pain in the right shoulder and elbow was referenced in his January 19, 1994 office note.

The commissioner noted several ways that the claimant’s job duties became less strenuous after her return to work in 1993. She also noted inconsistent testimony by the claimant regarding the commencement of her left elbow pain. Dr. Tross saw the claimant again in November 1994 and December 1995. He said that her shoulder injury was related to her job loading barrels of pens into a machine, but did not link any of her other symptoms to her employment with a reasonable degree of medical probability. Dr. Rago similarly stated that her neck, shoulder and elbow symptoms could not be convincingly linked to her employment. Dr. Sella, who performed a commissioner’s exam pursuant to § 31-294f on March 22, 1995, reviewed a videotape of the claimant’s “point to support” job after seeing her. He did not diagnose any right shoulder or right elbow injuries, and stated that her complaints from the elbow down are related to repetitive stress injury and overcompensation, but not the ones from the elbow up. He also stated that he could not state that her epicondylitis was related to repetitive stress injury. The claimant contends that the video he reviewed did not accurately reflect her job duties.

The trier concluded that there was no causal relationship between the claimant’s bilateral elbow and right shoulder complaints and her employment between July 1992 and November 1995. She cited the inconsistency of the claimant’s testimony regarding the onset of her left elbow pain, and found that this testimony was not credible. She also noted inconsistent documentation of the claimant’s shoulder and elbow pain in the treatment notes of Drs. Wu, Goodkind, Tross and Rago. She further opined that her pain complaints were inconsistent with her work history, as she worked seven years in the same job during the 1980s without complaining of pain in her neck, shoulder or elbows, but experienced all of these symptoms after taking five years off from that job and then working only 2½ years there upon returning. Therefore, she dismissed the claim for right shoulder and bilateral elbow injuries. The claimant has appealed that decision.

The first issue we will address is the claimant’s contention that the trier erred by denying her Motion to Correct. As has been stated many times in Connecticut workers’ compensation cases, the power and duty of determining the facts rests on the trial commissioner. Adzima v. UAC/Norden Division, 177 Conn. 107, 117 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). This includes the authority to consider the weight of the witnesses’ testimony and the medical evidence offered by the parties, even if that evidence is apparently uncontradicted. Id; Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). This board does not retry the facts on review, and can consider only whether there is evidence to support the facts found and whether there was a basis for the denial of any requested corrections that were material to the case. Admin. Reg. § 31-301-3 C.G.S.; Webb, supra, 71. Similarly, legal conclusions drawn from the facts found must stand unless they result from an incorrect application of the law or from an inference illegally or unreasonably drawn from the subordinate facts. Adzima, supra, 118.

The corrections denied by the trier that are discussed in the claimant’s brief cannot be changed by this board. The trier specifically stated that she did not find the claimant’s testimony credible, and we cannot order additional factual findings to be added based on statements the claimant made in her testimony. That would be a clear usurpation of the commissioner’s authority. The treatment given by Dr. Rago for the claimant’s right elbow pain in 1992 is not undeniably relevant to the outcome of this case, and the correction concerning that matter was not legally required here either. The 1995 diagnosis of Dr. Tross regarding the claimant’s shoulder is in the findings, see ¶ 85, and does not need to be restated. The videotape reviewed by Dr. Sella was not introduced into evidence, and the commissioner was not in a position to make any kind of finding as to its character. We find no error in the denial of the Motion to Correct.

The claimant also takes issue with the commissioner’s conclusion that she did not meet her burden of proving that her shoulder and elbow injuries arose out of and in the course of her employment. As this statement implies, it was her burden to prove her case, and not the respondents’ burden to disprove it. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). The fact that the trier did not find the claimant to be a credible witness could by itself explain her failure to prevail on her claim, as any medical diagnosis regarding the origin of her physical problems would be based at least in part on the work history she related to her doctors.

However, we also note that the medical reports did not provide overwhelming support for the claimant’s allegations of further compensable injuries. The commissioner was hardly required to seize upon the elements in each report favorable to the claimant and compile them to form the basis of an award. In fact, she explained in her findings what she felt the weaknesses were in each medical opinion, and discussed the doubts that Dr. Rago and Dr. Sella had concerning the work-relatedness of the claimant’s shoulder and elbow injuries. She was not required to credit the opinion of Dr. Tross regarding the cause of the claimant’s shoulder symptoms over that of the other doctors, especially since there was a conflicting report from Dr. Sella’s § 31-294f exam.

The factual findings in this case support the conclusion of the trial commissioner to dismiss the claimant’s claim. Therefore, we affirm her decision.