Burke v. Shaw’s Supermarkets, Inc. et al.

The claimant-appellant was represented Herbert Watstein, Esq., Watstein & Watstein, P.C., 685 Middle Street, P.O. Box 1360, Bristol, CT 06011.

The respondents-appellees Shaw’s Supermarket and Helmsman Management were represented by Kristen Falls, Esq., Letizia, Ambrose & Falls, One Church Street, New Haven, CT 06510.

The respondents-appellees Ponderosa and Liberty Mutual were represented at the trial level by James Powers, Esq., Law Office of Nancy Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033. However, they did not participate in proceedings on appeal.

The respondents-appellees Kelly Services and RSKCo were represented at the trial level by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033. However, they did not participate in proceedings on appeal.

This Petition for Review from the March 6, 2002 Finding and Dismissal of the Commissioner acting for the Sixth District was heard March 28, 20031 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals from the Commissioner acting for the Sixth District’s March 6, 2002 Finding and Dismissal. In that Finding and Dismissal the trial commissioner concluded claimant’s cervical spine degenerative disease was not causally related to her employment with the respondent Shaw’s Supermarket [hereinafter Shaw’s].

The pertinent facts are as follows. The claimant between September 1997 and February 1998 worked in the respondent Shaw’s deli department. In the deli department she operated machines to slice deli meats and cheeses, cleaned the machinery, floors and display cases. On January 31, 1998 the claimant was unable to lift her right arm and had little strength in her fingers. On February 4, 1998 the respondent referred the claimant to the New Britain General Hospital Occupational Health Clinic. The claimant was examined by a Dr. Angelina Jacobs who diagnosed the claimant as having right shoulder/wrist strain/tendonitis. Dr. Jacobs also noted at that examination the claimant had full range of motion of her neck without discomfort. Respondent Exhibit 3, Finding, ¶ 19.

On February 9, 1998 the claimant returned to work in a light duty capacity. In subsequent follow up examinations, Dr. Jacobs continued to note the claimant had full range of motion in her neck. The claimant was then referred to Dr. Jeffrey Steckler. Dr. Steckler examined the claimant on March 10, 1998 and noted right wrist tendonitis and “carpal metacarpal joint synovitis of the right thumb.” Dr. Steckler’s report of that date fails to mention any complaints relating to the claimant’s neck. Respondent’s Exhibit 3 and Finding, ¶ 24.2

On March 25, 1998 Dr. Steckler released the claimant for work with some restrictions. Following her employment with Shaw’s the claimant worked for a period with Johnson & Johnson through a temporary placement by Kelly Services, and then worked at the Ponderosa Restaurant (hereafter Ponderosa).

In October 1998 while lifting a container of potatoes at Ponderosa, the claimant cracked a bone in her left shoulder. The claimant received medical treatment but continued to complain about her neck. The claimant treated with several physicians regarding her neck and ultimately underwent an anterior cervical discectomy and fusion of the cervical neck at C5-6 level. That surgery was performed by Dr. Hilary Onyiuke. Findings ¶¶ 36-37.

The trial commissioner upon hearing all the evidence concluded that the claimant’s cervical spine problems did not arise out of and in the course of her employment. The trier relied on the expert opinion of Dr. Steckler who opined that the claimant’s neck problems were the function of arthritis and not work related. It is the claimant’s contention that the repetitive acts required in the operation of a meat slicer were substantial factors in the causation of claimant’s neck problems, i.e, the acts of repetitive motion required during her employment with Shaw’s aggravated/activated her pre-existing cervical condition.

In this appeal the claimant presents the following issues for review: (1) whether the trial commissioner erred in failing to conclude the claimant’s cervical spine problems arose out of and in the course of her employment with the respondent Shaw’s and (2) whether the trial commissioner erred in failing to grant the claimant’s Motion To Correct.

Whether an injury is causally related to a claimant’s employment is largely dependent upon the factual findings of the trial commissioner. Spatafore v. Yale University, 239 Conn. 408, 418 (1996), see also Dixon v. United Illuminating Co., 57 Conn. App. 51 (2000). In the instant matter the claimant contends the causal relationship between the claimant’s injury and the repetitive acts she performed was such that the opinion of a medical expert was not necessary in order to conclude her employment with Shaw’s was a substantial factor in producing her neck problems and the need for surgery. In Bastek v. Camco Fittings Co., 4487 CRB-3-02-2 (February 25, 2003) this tribunal noted:

However where expert medical opinion is proffered the trier must determine the weight it is given. Valletta v. State/DMR, 4543 CRB-5-02-6 (March 26, 2003). The medical evidence before the trial commissioner was conflicting. The reports of Dr. Jeffrey Steckler reflect the claimant’s neck problems and ultimate surgery were unrelated to her employment with Shaw’s. On appeal we do not engage in de novo review. Here the trier assigned greater credibility to the reports and opinion of Dr. Steckler on the issue of causation as is the trier’s right. Finding, ¶ W.

The claimant also argues the trial commissioner’s findings are inconsistent because in Finding ¶ V the trial commissioner found that the claimant was credible. We think here the claimant confuses a finding as to claimant’s credibility with the trial commissioner’s obligation to apply his own legal analysis to the facts as presented. Spears v. Spears, 2082 CRB-2-94-6 (October 30, 1997), appeal dismissed for lack of a final judgment) A.C. 17819 (January 15, 1998).

Finally we note the claimant claims it was error for the trial commissioner to fail to grant her motion to correct. “[A] commissioner’s denial of a Motion to Correct will not be overturned where the correction sought does not compel a different legal outcome. Loffredo v. Wal-Mart Stores, Inc., 4369 CRB-5-01-2 (February 28, 2002); Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (November 1, 2001), aff’d, 77 Conn. App. 319 (2003),” Valletta, supra. Our review of the corrections sought by the claimant reflect changes that; arguably conflict with other parts of the record, or the granting of which would not compel a different conclusion.

We therefore affirm the March 6, 2002 Finding and Dismissal of the Commissioner acting for the Sixth District.

Commissioner James J. Metro and Howard H. Belkin concur.

1 We note that while this appeal was pending, scheduling of this matter was delayed at the request of the parties. BACK TO TEXT

2 A follow up report dated March 18, 1998 similarly fails to mention complaints regarding the claimant’s neck. Finding ¶ 23 and Respondent’s Exhibit 7. BACK TO TEXT