State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Warren v. Federal Express Corporation

CASE NO. 4163 CRB-2-99-12



FEBRUARY 27, 2001












The claimant appeared pro se at oral argument.

The respondent was represented by Michael Vocalina, Esq., Berchem, Moses & Devlin, Attorneys at Law, 75 Broad Street, Milford, CT 06460.

This Petition for Review from the December 2, 1999 Finding and Dismissal of the Commissioner acting for the Second District was heard September 15, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Leonard S. Paoletta and Ernie R. Walker.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the December 2, 1999 Finding and Dismissal of the Commissioner acting for the Second District. He contends on appeal that the trier erred by dismissing his claim that a right knee medial meniscus tear and its sequelae were attributable to a compensable auto accident. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant was employed by the respondent Federal Express on November 11, 1992, when he was involved in a motor vehicle accident while operating a tractor trailer in Massachusetts. This compensable incident resulted in injuries to the claimant’s back, right shoulder and right knee, though emergency room records simply noted a “small abrasion right knee which is stable.” Findings, ¶ 3, citing Claimant’s Exhibits B, D. According to the claimant, his right knee struck the fiberglass cover that houses the engine during the accident, leading to later problems. The employer has accepted the back and shoulder injuries and paid indemnity and medical benefits for both; however, it disputes the compensability of the claimant’s current right knee symptoms, as the claimant failed to mention such symptoms during the first four years of treatment for his right shoulder and low back injuries.

The commissioner found that the claimant first complained of right knee pain to Dr. Collins, his treating physician, in February 1997. The claimant alleged that the joint had given him pain on and off during the years since the auto accident, but he expected that it would eventually go away. The trier found that the claimant had resumed his former practice of participating in amateur sporting activities, including golf and summer basketball, during 1995. He had noted no pre-existing knee injuries. In 1997, Dr. Collins diagnosed him with a torn posterior horn of the medial meniscus, and proceeded to perform an arthroscopic surgery that he related back to the automobile accident. An independent medical examiner, Dr. Krompinger, disagreed that there was a relationship between the auto accident and the medial meniscus tear. The trier also observed that the claimant had settled a third party claim arising out of the accident without mentioning a right knee injury. See Respondent’s Exhibit 3 (settlement approval dated December 17, 1993). He ruled that the claimant had not established the compensability of his medial meniscus tear by a preponderance of credible evidence (and also dismissed the respondents’ request for a $5,000 moratorium or credit as to future Chapter 568 benefits). The claimant has filed a petition for review from this ruling,1 and also seeks to supplement his appeal with a Motion to Submit Additional Evidence.2

Before we discuss the specific findings that have aggrieved the claimant, it is important that we clarify the role and purpose of the Compensation Review Board. When a person makes a claim under the Workers’ Compensation Act, and the parties are unable to resolve the claim by mutual agreement, a workers’ compensation commissioner often holds formal hearings to determine the facts of the claim. Ettienne-Modeste v. Bloomfield, 13 Conn. Workers’ Comp. Rev. Op. 327, 328, 1789 CRB-1-93-9 (April 26, 1995). The commissioner’s job at those hearings is to try the facts, as does a trial judge in Superior Court. Both parties are allowed to present medical evidence and testimony, and the commissioner must evaluate all of the evidence and decide which is the most believable. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). However, the parties do not start from a precisely equal position, because the claimant has the burden of proving that he has sustained a compensable injury, that he has a disability, or (as in this case) that his acknowledged disability was caused by an accepted compensable injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000). To illustrate the effect of this burden, if a trial commissioner chose to believe none of the witnesses in a given case, and found all of the documentary evidence to be untrustworthy, the employer would essentially prevail by default.

Oftentimes, the origin of a particular injury or condition is unclear, and can only be firmly established with the aid of expert medical testimony. Murchison, supra; Gibbons, supra. The injury that is at issue here is a prime example. Because the claimant’s medial meniscus tear was an internal injury that did not bother him enough to require surgery or treatment until 1997, it was unlikely that he would be able to link it to the 1992 car accident without the diagnosis of a doctor. Thus, in order to prevail on his claim, the claimant (1) needed to provide testimony from a physician (either in person or via medical report) essentially stating that his knee condition was caused by his 1992 accident within a reasonable degree of medical probability, and (2) needed to convince the trial commissioner to rely on that testimony. The satisfaction of the latter requirement was not completely within the claimant’s control, however, as the trier of fact has the sole authority to decide which, if any, evidence is reliable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (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 draw negative inferences regarding its persuasiveness from many different sources, such as the demeanor of the witness, the presence or absence of corroborative empirical evidence, or any other element of the case that the factfinder thinks is significant. Id.; Gibbons, supra.

On appeal, this board does not have the power or the authority to retry the case by second-guessing the commissioner’s decisions to credit or reject a particular piece of evidence. Fair, supra; Pallotto, supra. As discussed in footnote 2, supra, we also have extremely limited authority to accept new exhibits. When we review the findings of a trial commissioner, we may alter them only if they contain facts found without any supporting evidence, or if the findings fail to include material facts that are truly undisputed. Barton v. Waterbury Company, 3786 CRB-5-98-3 (June 3, 1999); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The legal conclusions of the trial commissioner must also remain intact unless they “result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ettienne-Modeste, supra, quoting Fair, supra, 539. An appeal to the CRB, therefore, is not the equivalent of a “second chance” to prove one’s case; it is a means of obtaining review in the event of legal error.

In his brief and Reasons of Appeal, the claimant discusses why he considers the trier’s decision unfair, and perceives it as an attack on his personal integrity. He responds to several of the trial commissioner’s findings by attempting to explain various aspects of his conduct. For example, he states that he did not report his knee pain to Dr. Collins at the time of his initial treatments because his back and shoulder hurt a lot more, and because he had a very limited amount of time with the doctor during each of his visits. He speculates that certain medication he was taking must have masked the pain in his knee until it became unbearable. He also claims that the trier mischaracterized the degree of his participation in sporting activities since 1995, as the extent of his basketball playing was to shoot around with his son in their driveway, and he had golfed only infrequently since 1995 and always with the assistance of a cart. Further, he contests the trier’s reading of Dr. Krompinger’s independent medical examination report, which he contends was not as detrimental to his case as the trier suggests in ¶ 21 of his findings.

As we stated earlier, this board does not have the power to conduct its own factfinding proceedings during the resolution of an appeal. We would be exceeding our powers if we were to independently consider the claimant’s history of the events relevant to this case, and declare that his explanation should have been accepted by the trial commissioner. See Tartaglino, supra. Any discrepancies or inconsistencies in the presentation of a party’s case must be resolved by the trial commissioner alone. Gibbons, supra. As such, most of the issues raised by the claimant here are not of a type for which this board can offer him much relief, as they depend wholly on the trier’s interpretation of the facts as presented by the various witnesses and experts.

However, we hope that it will be of some solace to the claimant if we suggest that the trier’s denial of his claim was not necessarily a direct challenge to his veracity or that of his father, who testified on his behalf. As noted above, the claimant has the burden of proof in a workers’ compensation case. See Murchison, supra. Dr. Krompinger’s report may not have directly repudiated the existence of a causal relationship between the claimant’s motor vehicle accident and his right knee chondromalacia, but it did say that, in that doctor’s opinion, the absence of other medical information corroborating such a relationship combined with the lapse of time since the car accident left him unable to confirm that the accident was the cause of the claimant’s need for further treatment to that knee. Respondent’s Exhibit 4.

Though the claimant’s failure to seek medical treatment for his knee injury until 1997 may be considered by some as understandable given the severity of his other injuries and the intermittent nature of his knee pain, this delay evidently made it impossible in the commissioner’s opinion for either Dr. Krompinger or Dr. Collins to reliably say that the knee injury was caused by an event that had occurred five years earlier. Even if the claimant was telling the truth about his recurring knee pain and his subjective belief that it was caused by his compensable automobile accident, the claimant is not a physician, and was not medically qualified to offer a professional opinion that his meniscal tear was due to that accident. This is a much more likely explanation for the trier’s finding that the claimant had not met his burden of proof regarding the origin of his knee condition, rather than assuming that the trier simply thought that the claimant was fabricating his testimony. There is no indication in the findings that the trier deemed the witnesses to be untruthful. Still, given the basis of the trier’s decision, we must affirm on appeal, as we have no grounds upon which to disturb his ruling as a matter of law.

The trial commissioner’s decision is hereby affirmed.

Commissioners Leonard S. Paoletta and Ernie R. Walker concur.

1 Though the claimant was represented by counsel during trial-level proceedings, he is without an attorney on appeal. The respondent has filed an objection to the claimant’s reasons of appeal, noting that they were filed on February 10, 2000, well beyond the time limit set by Admin. Reg. § 31-301-2, which required the claimant to submit such reasons within ten days after the December 9, 1999 filing of his petition for review. We decline the respondent’s request that we disregard these reasons for appeal, notwithstanding their tardiness, in light of the claimant’s pro se status. “Where a claimant is proceeding pro se on appeal, this board normally relaxes the rules of procedure in recognition of his presumed unfamiliarity with the law.” Whelan v. Humphrey Chemical Co., Inc., 3726 CRB-3-97-11 (Dec. 16, 1998). As the respondent has shown no prejudice from the tardiness of the claimant’s filing, his reasons for appeal shall remain part of the reviewable appellate record. See McCarthy v. AT&T Communications, Inc., 3689 CRB-6-97-9 (Aug. 7, 1998). BACK TO TEXT

2 The law allows the Compensation Review Board to accept additional evidence into the record “[i]f any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner . . . .” Admin. Reg. § 31-301-9. A party who makes such a motion must also describe the nature of the evidence that it wishes to submit. The “Motion for Additional Evidence and/or Testimony” that the claimant filed on December 29, 1999 does not meet the requirements of this regulation, as the claimant does not describe the evidence he wishes to submit to this board, nor does he explain why it was left out at the formal hearing. Even taking into account the procedural leniency that this board affords to pro se appellants, the claimant’s motion does not contain enough information to provide a concrete basis for a legal ruling in his favor. Therefore, we must deny the claimant’s Motion for Additional Evidence and/or Testimony. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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