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Duddy v. Filene’s (May Department Stores Co.)

CASE NO. 4484 CRB-7-02-1



OCTOBER 23, 2002









The claimant appeared pro se at oral argument.

The respondent was represented by Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the December 18, 2001 Finding and Dismissal of the Commissioner acting for the Seventh District was heard July 19, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the December 18, 2001 Finding and Award of the Commissioner acting for the Seventh District. She is unrepresented by counsel on this appeal, and also appeared pro se at trial. She contends on appeal that the trial commissioner acted in error by dismissing her claim that she suffered additional physical injuries arising out of an accepted March 15, 1999 workers’ compensation claim, beyond those injuries that have already been accepted by the respondent. We find no legal error, and therefore affirm the decision of the trial commissioner on appeal.

The facts of this case are as follows. On March 15, 1999, the claimant sustained a compensable injury after being struck by a metal “T-stand” that fell on her while she was emptying a rack of clothes for the respondent Filene’s, a subsidiary of the self-insured May Department Stores Co. She filed a Notice of Claim (Form 30C) for this injury on April 19, 1999. According to a voluntary agreement between the claimant and the respondent that was approved on July 21, 1999 by a Commissioner acting for the Seventh District, the claimant sustained a left trapezius and shoulder muscle strain, a rib contusion, and trauma to her cervical spine. Her compensation rate was set as $241.25 per week.

Shortly after her injury, the claimant’s primary care physician assigned her a light duty restriction of four hours per day, five days per week. It appears from the testimony that she received wage differential benefits from her employer during that time. The respondent filed a Notice of Intention to Discontinue Payments (Form 43) on April 12, 2000, on the ground that Dr. Ripps, an independent medical examiner, had released the claimant to return to her usual work. The doctor had diagnosed a contusion to the left chest and strained left shoulder, fibromyalgia, and symptom magnification, and was of the opinion that her cervical spine had reached maximum medical improvement. He had stated in his attached report, “I have discovered no objective evidence which would contradict Mrs. Duddy resuming her prior duties and responsibilities. The fact that she prefers to work between 10 in the morning and 2 in the afternoon is an accommodation her employer should not have to provide based on the objective impairment at hand.” Respondent’s Exhibit 7. This Form 36 was granted by a commissioner, with an effective date of July 12, 2000.

The claimant disagreed with the decision to grant the Form 36, and requested a formal hearing on the matter. Appearing pro se before this Commission, she alleged that she had also sustained damage to her lower back as a result of her March 15, 1999 injury, which the respondent had incorrectly overlooked to that point even though a problem had been identified in that area. She also complained that she had never been paid workers’ compensation benefits aside from her wage differential compensation, as her doctor should have taken her out of work and placed her on total disability rather than allowing her to work 20 hours per week. See November 19, 2001 Transcript, pp. 48, 64. The trial commissioner found in his Finding and Dismissal that she had lost no time from work as a result of the March 15, 1999 injury, and has chosen to work 20 hours per week despite being offered full-time work by the respondent. She has received all benefits to which she is entitled under the Workers’ Compensation Act. The trier also found that the claimant had presented no credible evidence that she had suffered a lower back injury, or any other injuries beyond those listed in the July 21, 1999 voluntary agreement, and he was not persuaded that she continues to need ongoing medical care. The claimant then filed an appeal from that decision, thereby bringing her before this board.

Before we begin to discuss the specific issues that the claimant has attempted to raise in this appeal, it is important that we clarify the role and purpose of the Compensation Review Board. When a workers’ compensation commissioner holds a formal hearing to determine the facts of an unresolved claim, his job is to try the case and find facts based on the evidence presented to him, the same way that a judge presides over the proceedings and makes findings in a Superior Court bench trial. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001); Ettienne-Modeste v. Bloomfield, 13 Conn. Workers’ Comp. Rev. Op. 327, 328, 1789 CRB-1-93-9 (April 26, 1995). Both the claimant and the respondents are allowed to present medical evidence and testimony at a formal hearing. After the hearing has ended, the commissioner must evaluate all of the evidence that the parties have presented, and decide which of their arguments is the most believable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Warren, supra, citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The trial commissioner has the sole authority to decide which, if any, of the evidence is reliable, and he is always free to decide that he does not trust a particular medical opinion or a particular witness’ testimony, even if there does not appear to be any evidence that directly contradicts it. 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).

A claimant has the burden of proving every element of her claim, such as the existence of a physical disability and the relationship between that disability and an injury that has allegedly occurred at the workplace. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Warren, supra. Here, the claimant was attempting to show that she suffered from a lower back condition that was causally linked to her accepted March 15, 1999 compensable injury. It was up to the trial commissioner to decide whether the claimant’s evidence was reliable and thorough enough to establish this causal relationship within a reasonable degree of medical probability. Murchison, supra; Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Warren, supra. On appeal, this board does not have the power to retry a case by second-guessing the inferences that a commissioner has drawn regarding the credibility of the evidence. Fair, supra; Pallotto, supra. All we may do is review the trier’s findings to determine whether there is any evidence in the record to support them, and to determine whether the trier may have incorrectly omitted material facts that are truly admitted and undisputed. Phaiah, supra; Warren, supra. Thus, the claimant must recognize that an appeal to the CRB is not the equivalent of a “second chance” to prove her case; instead, it is a means of obtaining review in the event a legal error has affected the trier’s decision. Id.

The claimant’s reasons of appeal and her handwritten brief identify a number of different objections to the commissioner’s decision and the proceedings that followed her injury. We shall attempt to address them thoroughly, so as to provide the claimant with a better understanding of this process. The most important issue currently before us is probably her allegation that she suffers from continuing lower back symptoms because of her March 15, 1999 injury. She claims that she has always contended that there were injuries to her lower back, and that the original insurance form corroborates this claim, along with the results of her MRI.

Looking at the evidence, we see that Claimant’s Exhibit D contains an insurance form dated March 19, 1999 that was prepared by the employer for its self-insurance administrator. This form describes the part of body affected as “low back area,” and the injury process as, “employee was moving clothes when a T stand struck her in the back.” However, we must also note that the other evidence from the year 1999, including the claimant’s Form 30C and all of the medical reports, fails to make any mention of a low back injury. This includes a June 29, 1999 letter from the claimant’s former counsel requesting that the voluntary agreement be amended to include the cervical spine and a rib contusion along with the previously listed left trapezius and shoulder muscle strain. The trial commissioner no doubt wondered why this letter said nothing about the low back, and why the reports of Dr. Ripps, Pam Lehme (a physical therapist), Dr. Gevinski (her original treating physician), Dr. Nipper (her subsequent treater), and the voluntary agreement all neglected to make so much as a passing comment about a low back injury. See Claimant’s Exhibit D; Respondent’s Exhibits 3-7. Moreover, the October 3, 2000 MRI result that the claimant relies upon so heavily describes “degenerative changes” in her lower back at the L3-4, L4-5 and L5-S1 levels without any mention of a specific injury causing those changes. Claimant’s Exhibit B. It describes the claimant as a “60-year-old female with right sided back pain radiating to the right lower extremity since March of 2000,” which is one year after the injury date. Id.

There is no medical evidence in the record that specifically links the degenerative changes shown in the claimant’s MRI results to her 1999 compensable injury. Such evidence would likely be necessary in this case, as it would not be obvious to an average layperson that the origin of the claimant’s lumbar disc degeneration must be the March 15, 1999 injury. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449 (2001); Garofalo v. Jarvis Products Corp., 4249 CRB-8-00-6 (Sept. 12, 2001). In our capacity as a review panel for the trial commissioner’s decision, we have no basis upon which to question his finding that the claimant’s proof was insufficient to establish a compensable back injury claim. The claimant offered no evidence that could establish the necessary causal connection within a reasonable degree of medical probability, as required by the law. In all honesty, it would have been hard for the trial commissioner to make any other finding based on the forms and medical reports in the evidentiary record, and the testimony of the parties at the formal hearing.

In her appeal papers, the claimant expresses her misgivings regarding ex parte contact that occurred between a claims adjuster at the respondent’s regional claims office and the claimant’s original treating physician. In a letter written by the claimant’s former counsel to Thomas E. Fay Insurance Adjusters, the respondent’s claims administrator, counsel wrote that “it was addressed at the June 23, 1999 hearing that Lori Drapalski, the adjuster for May Department Stores, has been in direct contact with Dr. Gevinski’s office. In this regard, I have enclosed a copy of Memorandum 99-10 issued on June 18, 1999 from the Chairman’s office indicating that there is to be no ‘ex parte’ communication with the medical provider by either a nurse case manager or adjuster. Therefore, I would request that this communication cease immediately.” Claimant’s Exhibit D. The claimant somewhat rhetorically wonders in her Reasons of Appeal, “What effect did all this contact have on my lower back injury not being included?”

In order for us to discuss this objection accurately, we must explain that Memorandum 99-10 was superseded less than one month after its issuance by Memorandum 99-12. The original memorandum simply stated, “A nurse case manager or adjuster shall not attend an injured employee’s appointment with the treating physician or have any ex parte communication with the medical provider.” The revision, however, meaningfully qualified this statement by stating:

In an effort to improve communications between the parties and to define the rights and obligations of the parties, the following guidelines are to be followed:
1. A nurse case manager or adjuster, when communicating with an injured employee, his/her representative, or his/her treating physician, shall identify him/herself and advise the injured employee, his/her representative, or his/her treating physician, as the case may be, that he/she is representing the employer or its insurance carrier.
2. If the nurse case manager or adjuster wants to attend a medical examination of the injured employee performed by a physician, the nurse case manager or adjuster must first obtain the injured employee’s written or verbal consent to attend.
3. If the nurse case manager or adjuster intends to meet with the treating physician following an examination of the injured employee, the injured employee or his/her representative must be given either written or verbal notice of such meeting so that the injured employee has an opportunity to attend said meeting.

July 12, 1999 Memorandum.

This revised memorandum recognizes that it would be difficult to exchange important information in a system that completely forbade respondents’ case managers from communicating with a treating physician. Instead, we have created safeguards designed to prevent a respondent from unduly influencing a treating physician’s relationship with a patient. For example, claimants are not only entitled to be present at any meeting between a respondent’s representative and a treating physician, but they also must be provided with copies of all correspondence sent by a respondent to a treating physician, so as to give them an opportunity to participate in any dialogue. When a claims adjuster communicates over the telephone with a treating physician, she must identify herself as a representative of the respondent, and expect that the substance of her communication with the treating physician may be shared with the claimant. However, it is currently the position of this Commission that conversations between physician and adjuster may take place under those conditions.

As for the claimant’s concern regarding the effect of the ex parte communication between Ms. Drapalski and Dr. Gevinski, we note that there is nothing in the record to corroborate the claimant’s assertion that Dr. Gevinski had planned on obtaining an MRI of her back until the respondent’s interference scuttled that notion. The note from Dr. Gevinski dated June 15, 1999 does state that he planned to get an MRI to evaluate her for disc herniation, but it is clear from the context of that statement that he was referring to the cervical spine at the time, rather than the lumbar area. See Claimant’s Exhibit C. Moreover, the claimant was treated by several other doctors besides Dr. Gevinski, none of whom mentioned her lumbar spine. We have no reason to presume that there was a problem with improper ex parte communication in those instances. Thus, even if we set aside the fact that some communication between a claims adjuster and a treating physician is allowable under the guidelines set by the July 12, 1999 Memorandum, we see no evidence in the record that prejudice was caused to the claimant by the communications of which she complains.

The claimant has also raised several grievances surrounding her non-receipt of total disability benefits, and her reclassification as a part-time employee from her prior full-time status. None of these arguments reflect legal error on the part of the trial commissioner. The claimant’s treating physicians felt that she was capable of light duty work following her injury, and did not declare her totally disabled. See Respondent’s Exhibits 3, 4, 5. Regardless of whether other people who have suffered similar injuries may have been declared totally disabled by their doctors, the claimant was not placed in that category, and she in fact went to work and received wages for the 20 hours she put in each week. This amount was supplemented by partial disability benefits.

Simply put, the claimant was not entitled to total disability benefits if she was in fact working. Total disability benefits are reserved for individuals who are unable to physically or mentally pursue any gainful occupation, or who have some theoretical light duty work capacity, but cannot find an employer who will hire them. Osterlund v. State, 135 Conn. 498, 506-507 (1949); Dengler, supra, 448-49, 454; Figueiredo v. Barridon Corp., 4442 CRB-1-01-9 (Aug. 16, 2002); Covaleski v. Casual Corner, 4419 CRB-1-01-7 (June 27, 2002). This benefit is designed to remedy a claimant’s temporary inability to work due to a compensable injury. Laliberte v. United Security, 4264 CRB-5-00-7 (July 26, 2001), aff’d, 261 Conn. 181 (2002). It does not take the place of a “pain and suffering” award in civil court, and the claimant is not entitled to it merely by virtue of the fact that, in hindsight, she suspects that she might have been better off medically if she had stayed out of work altogether, rather than having tried to work and attend physical therapy at the same time.

As stated above, the respondent’s Form 36 was granted on July 12, 2000, on the strength of a detailed report by Dr. Ripps that found the claimant fit to resume her prior job duties. The claimant suggests in her Reasons of Appeal that she should have been granted a continuance to postpone this hearing, which she requested on July 11, 2000, as she had met with an attorney earlier that day who was unable to attend the claimant’s hearing on the following day due to prior commitments. We have consistently held that it is within the broad discretion of the trial commissioner to grant or deny a continuance, and such a ruling is virtually unreviewable on appeal. Rodrigues v. American National Can, 4329 CRB-7-00-12 (Jan. 2, 2002); Mercado v. Personal Moving Services, 14 Conn. Workers’ Comp. Rev. Op. 364, 365, 2023 CRB-4-94-5 (Sept. 26, 1995). It is worth noting that the respondent’s Form 36 was actually filed on April 7, 2000, and was placed “on hold” by the trial commissioner for several months. A hearing scheduled for May 10, 2000 was postponed, as was a hearing scheduled for June 16, 2000. Why the claimant waited until the day before the July 12, 2000 hearing to attempt to retain counsel is unknown to us. However, the trier was certainly not required to honor her last-minute request to again postpone the Form 36 hearing.

Once this Form 36 was granted, the claimant was entitled to a formal hearing on the matter, which she sought and obtained. In the meantime, however, she was no longer entitled to continue her light duty status with her employer; yet, the claimant chose to keep working four-hour days. Her employer accommodated her desire to cut back her hours, even though it offered her full-time work as well. The claimant now objects to the employer’s reclassifying her as a part-time employee effective November 1, 2001. We note that this issue was not raised at trial, and the trial commissioner was given no opportunity to make findings in this regard. Therefore, we have nothing to review on appeal. We would suggest, however, that there are no medical reports in evidence that postdate Dr. Ripps’ April 2000 report, which stated that the claimant was fit to resume full duty. Given that the Form 36 had been granted in July 2000, we are not at all surprised or troubled by the fact that the respondent changed the claimant’s employment status after she failed to return to full-time duty for 16 months.

As we find no error in the trial commissioner’s decision, we affirm the Finding and Dismissal in its entirety.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

Workers’ Compensation Commission

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