Simmons v. Temporary Labor Corp.

The claimant was represented by Steven Katz, Esq., Butler, Norris & Gold, 254 Prospect Avenue, Hartford, CT 06106-2041.

The respondents were represented by Margaret E. McGrail, Esq., and Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the February 9, 1999 Finding and Award of the Commissioner acting for the Sixth District was heard December 3, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the February 9, 1999 Finding and Award of the Commissioner acting for the Sixth District. They contend on appeal that the trier erred by finding that the claimant’s carpal tunnel syndrome was caused by her employment, and by awarding attorney’s fees against the respondents without proper notice of the issue having been given. We affirm the trial commissioner’s decision regarding compensability of the claimant’s injury, and reverse the award of fees with instruction that the case be remanded.

The claimant began working for the respondent Temporary Labor Corp. (TLC) on October 25, 1996. Her first assignment was at a job whose chief duty consisted of slipping papers inside folders; she was then placed at Metal Crafters in Newington for the week of November 11, 1996, where she was required to sort metals. There, she began to feel pain in her hand. At the end of the week, TLC told her that she would be returning to Metal Crafters for the following week. She felt more pain in her hand on Saturday, November 16, and called TLC to report her injury. The employer sent her to Industrial Health Care (IHC), where she was evaluated, diagnosed with right wrist tendonitis, and restricted to left hand duty. She continued to treat at IHC, and was restored to full duty work on November 29, 1996. After a flare-up in symptoms, she returned to IHC on December 9, 1996, and spent the following nine days on light duty before being re-released to full duty and discharged. Dr. Feinstein, the IHC medical director, opined that her tendonitis was related to repetitive physical tasks being performed at the workplace.

According to TLC’s records, the claimant worked for the company for a total of 86 hours. She also testified that, following her stint at TLC, she secured a part-time job taping boxes that caused her more hand and arm pain. At the respondents’ request, the claimant was examined by Dr. Watson on July 2, 1997. He diagnosed her with right carpal tunnel syndrome. Although he thought the claimant a poor historian, he stated that her condition was compensable in nature, and estimated that it had appeared about eight months earlier.

The trial commissioner specifically noted that, prior to Dr. Watson’s examination, there had been ample opportunity for the respondents to supply the doctor with information regarding the brevity of the claimant’s affiliation with TLC and her instances of subsequent employment. He concluded that the claimant’s pain began on November 15, 1996, and that it was caused by repetitive trauma arising from the claimant’s employment with TLC. The commissioner also found that the respondents’ only defense in this action was that “the claimant is a poor historian,” and cited them for unreasonably contesting liability and unduly delaying the payment of benefits in this case. He ruled that the claimant was entitled to payment of her medical bills and 3.1 weeks of temporary partial disability benefits supplemented by 12% interest per annum, as well as a $5,000.00 attorney’s fee. The respondents have appealed that decision.

The determination of whether or not an injury arose out of and in the course of a claimant’s employment is a question of fact, at least insofar as it is dependent on inferences drawn from the evidence in the record. Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 384 (1999). When this board reviews a commissioner’s factual findings, we treat them with considerable deference. Cabral v. Metropolitan District Employees, 3770 CRB-1-98-2 (May 13, 1999). The trier of fact is entitled to determine the weight of the physical evidence presented and the credibility of all testimony offered by lay and expert witnesses, even if such evidence has not been expressly rebutted. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). We may alter or strike the trier’s findings only when they are wholly unsupported by the evidence, or when they omit undisputed material facts. Pallotto, supra. This board does not retry cases on appeal, and we will not disturb a commissioner’s legal conclusions unless they result from an incorrect application of the law to the facts, or of an inference illegally or unreasonably drawn from them. Id.; Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The mere fact that the claimant worked only 86 hours for TLC does not preclude a finding that repetitive trauma sustained while working at Metal Crafters caused her to develop carpal tunnel syndrome. Setting aside for a moment the degree of deference we allocate to the trier’s decision regarding the particular role of an incident in causing an injury, a full week of work can hardly be considered such a minor occurrence as a matter of law that it cannot possibly be recognized as a substantial cause of a repetitive stress injury. Compare Niebler v. Waldbaum’s Foodmart, 14 Conn. Workers’ Comp. Rev. Op. 61, 1851 CRB-3-93-9 (May 11, 1995) (minor bending incident at home did not cause back injury); Hanzlik v. James Freccia Auto Body, 15 Conn. Workers’ Comp. Rev. Op. 2, 1984 CRB-7-94-3 (Nov. 1, 1995) (disc herniation not caused by claimant bending over to pick up three-ounce piece of car molding), aff’d, 43 Conn. App. 908 (1996) (per curiam). A reasonable person could conclude that enough activity took place during that time to induce tendonitis or carpal tunnel syndrome, particularly where there are medical reports that support such a conclusion. See Claimant’s Exhibits A, B (reports of Dr. Feinstein); Claimant’s Exhibit C (report of Dr. Watson).

We are also unpersuaded by the respondents’ contention that the trier’s decision should be overturned because Dr. Watson referred to the claimant as a poor historian, and because her testimony was allegedly “less than definitive.” Brief, 4. First, even if Dr. Watson found it hard to “isolate exactly what she felt or what was occurring,” he was still confident enough to diagnose low-grade carpal tunnel syndrome. Exhibit C, supra. Furthermore, Dr. Feinstein also obtained a history from the claimant, which was roughly contemporaneous with the onset of her symptoms, and which reflected that she was sorting metal key rings when her right wrist began hurting on Friday, November 15, 1996. Given the breadth of the trier’s discretion in determining the appropriate weight to assign to such evidence, it would be well beyond our authority on review to reverse the commissioner’s decision on that ground.

As for the testimony of the claimant herself, the transcript of the December 15, 1998 formal hearing suggests that she occasionally had difficulty understanding the questions posed to her, and had a corresponding amount of difficulty articulating her responses. This trait was noticeable throughout her testimony, especially when she was being cross-examined by the respondents’ attorney about the details of her employment at TLC and her subsequent employment history. Still, the claimant did not waver regarding the occasion of her injury or her lack of wrist, arm or hand pain prior to her duties at Metal Crafters. See Transcript, 8-11. Her later testimony merely reflected that she continued to experience symptoms of carpal tunnel at the subsequent jobs she obtained. She did not offer an inconsistent description of her initial complaint.

Considering the lack of evidence offered by the respondents to contradict the claimant’s story, it would seem that the respondents were hoping that the trier would draw a strong negative inference from the claimant’s idiosyncrasies of expression. We note that the claimant was born and raised in Jamaica, where she left school during the eighth grade in order to rear her first child. Transcript, 4-6. She received support from the father of her child, and had never been employed outside her home until she moved to the United States (specifically, Connecticut) in 1995. It is likely that the trier attributed the recurring awkwardness in the claimant’s testimony to educational and cultural factors, including differences between the accent and dialect of the northeastern United States and the West Indies, rather than to deficiencies in the substance of her claim. Whatever impression he drew, it was well within the trier’s discretion to find the claimant’s testimony credible. Carroll v. The Print Shoppe, 3614 CRB-4-97-5 (June 8, 1998) (trier’s prerogative to disregard inconsistencies in evaluating testimony). Again, that is not an adjudication that we can second-guess on appeal.

The respondents also object on appeal to the trier’s award of a $5,000.00 attorney’s fee based on his finding that they unreasonably contested liability for this claim and unduly delayed the payment of benefits. The findings of unreasonable contest and undue delay themselves are not shocking, as the respondents offered neither medical evidence nor the testimony of fact witnesses to refute the instant claim, and the claimant testified that TLC had refused to pay either the hospital bill or Dr. Watson’s bills. Transcript, 16. Advance notice to the parties was not necessary for the trier to make a finding pursuant to § 31-300 regarding the impropriety of the respondents’ conduct in defending this matter. Bailey v. State of Connecticut/GHCC, 3922 CRB-2-98-10 (Nov. 30, 1999).

The amount of an award of attorney’s fees, however, is an issue that is normally addressed after notice is given to both parties. This affords the participants a chance to present evidence regarding the factors relevant to a fee award, including “the amount of preparation required in the case, the novelty and intricacy of the questions presented, and customary charges for similar services.” Anglero v. State of Connecticut Dept. of Administrative Services, 3457 CRB-8-96-11 (March 5, 1998); see also Lapia v. Stratford, 47 Conn. App. 391 (1997) (fee award did not comport with due process where commissioner communicated ex parte with claimant’s former attorney, and did not give claimant notice or opportunity to present evidence). In some cases, we have affirmed awards of attorney’s fees that, though not preceded by a separate hearing, have nevertheless been easy to identify as reasonable in light of the obvious conformity of the awards to this commission’s guidelines setting forth maximums on attorney’s fee assessments. See, e.g., Bailey, supra; see also January 2, 1998 directive of former commission chairman Jesse M. Frankl Re: Claimants’ Attorneys’ Fees. In such instances, the basis of the trier’s decision has been readily determinable from the record. Anglero, supra, n.1; see also, Miller v. Kirshner, 225 Conn. 185, 201 (1993) (courts have general knowledge of what would be a reasonable attorney’s fee, and are often in a good position to set a fee because of their involvement with the trial and their awareness of counsel’s services) .

Though the issue of attorney’s fees was not included in the formal hearing notice or discussed at the hearing, the claimant notes in her brief that it was mentioned in her Proposed Findings of Fact, which were date-stamped “Received” on February 5, 1999 by the Sixth District office.1 The claimant also submitted an affidavit that was received on February 16, 1999, which itemizes in great detail the time that the claimant’s attorney spent working on this case (a total of 34.25 hours), and requests a fee of $8,562.50 (at $250 per hour). The respondents’ proposed findings were stamped “Received” on January 28, 1999, and thus do not address the fee issue. They did not attempt to file a supplemental brief addressing this topic. The claimant contends that the trial commissioner thus had a sufficient basis upon which to make his award.

We observe that the trier’s Finding and Award was dated February 9, 1999 (a Tuesday). This predates the receipt of the claimant’s affidavit by one week. The trier would certainly have benefited from considering the affidavit before making his decision. Also, the respondents would only have had four days (including a Saturday and a Sunday) to file an objection to the request for attorney’s fees in the proposed findings. As a practical matter, this time period was insufficient to allow them to formulate any sort of response to the claimant’s assertion of entitlement to such an award. A trial commissioner should, if he feels as the trier did in this case, follow through on the procedure for awarding attorney’s fees by ensuring that all parties have an opportunity to be heard on the matter. As such, we remand this case to the trier so that the technical requirements of due process may be satisfied solely on the issue of the amount of the attorney’s fee, as we uphold his finding of unreasonable contest and undue delay.

The trier’s decision is thereby affirmed in part, and reversed in part with direction to remand. We also note that, insofar as the claimant is entitled to temporary partial disability benefits that have not been paid pending appeal, interest is awarded pursuant to § 31-301c(b).

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 In the proposed findings, ¶ 48 states, “The Respondent is responsible for claimant’s attorneys’ fees for wrongfully withholding medical treatment for a compensable injury.” BACK TO TEXT