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Sullivan v. H. W. Sandora & Sons, Inc.

CASE NO. 4603 CRB-3-02-12



DECEMBER 29, 2003











The claimant was represented by John Carangelo, Esq., Law Office of Lawrence A. Levinson, P.C., 181 Edwards Street, New Haven, CT 06511.

The respondents were represented by Laurence McLoughlin, Esq., Mathis & Associates, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

This Petition for Review from the December 11, 2002 Finding and Award of the Commissioner acting for the Third District was heard June 20, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the December 11, 2002 Finding and Award of the Commissioner acting for the Third District. They contend on appeal that the trier erred by finding that the claimant’s shoulder condition was related to an earlier, accepted compensable injury to his left upper extremity, and by awarding the claimant benefits pursuant to § 31-308a C.G.S. We affirm the trial commissioner’s decision.

The trier found the following facts. The claimant, a construction worker and truck driver in the employ of the respondent H.W. Sandora & Sons, Inc., suffered an injury to his left upper extremity on November 30, 1999, while lifting a canvas cover on his dump truck. Dr. Aversa performed surgery on December 9, 1999 to repair a ruptured bicep tendon in the general area of his elbow, and released the claimant to light duty on April 3, 2000, with restrictions against repetitive use of his left arm. An approved voluntary agreement reflected a 10% permanent partial impairment of the left upper extremity, with a maximum medical improvement date of November 9, 2000. The claimant was cleared to return to work on December 18, 2000, despite symptoms of left arm pain and dysesthesia in the radial nerve.1 For those symptoms, the claimant was referred to Dr. Bridgers, who noted no evidence of radial nerve compression, but observed evidence of carpal tunnel syndrome and ulnar neuropathy in the claimant’s left arm.

On or about April 22, 2001, the claimant was home shoveling snow in his driveway following a two- or three-inch snowfall. Approximately twenty or twenty-five minutes into the chore, he bent forward to lift a shovelful of snow, and felt a sharp pain down his forearm into his hand. He dropped the shovel and tossed it aside, causing him to slip and fall, and to hyperextend his left hand. The following day, he went to the hospital with complaints of pain and weakness in the left arm and shoulder. Dr. Ahrens opined that the excruciating pain that the claimant had experienced from radial nerve compression might have caused the fall. Dr. Aversa saw the claimant again on October 29, 2001, and noted that the radial nerve was not involved, though nerve conduction studies demonstrated carpal tunnel syndrome and cubital tunnel entrapment. He opined that the rotator cuff tear of April 22, 2001 was related to the earlier work injury, as the claimant’s arm had given way, causing the fall and the hyperextension. Dr. Aversa could not be sure of the cause of the cubital and carpal tunnel symptoms, but stated that they were aggravated by the 1999 compensable injury. He recommended arthroscopic surgery on the shoulder, and carpal/cubital tunnel release.

Dr. Luchini, whom the claimant saw for a second opinion, unequivocally opined that the claimant’s ulnar neuropathy and carpal tunnel problems were a direct result of the 1999 occupational injury. His report also suggested that the claimant would not be able to return to his usual work, and that he was restricted to desk work with no lifting. Dr. Bernstein, a respondent’s examiner, offered the contrary opinion that pain from the elbow injury was unlikely to have caused the claimant’s fall while shoveling snow, and said that neither the ulnar neuropathy nor the carpal tunnel syndrome could be related to the compensable bicep tendon injury. Indeed, at his deposition, Dr. Bernstein explained that no clinical symptoms of carpal or cubital tunnel syndrome were identified in his examination. He also opined that a bicep injury is inconsistent with the inability to flex, a loss of hand sensation, or a tendency to drop objects held in the hand. He disagreed with the opinions of Dr. Aversa and Dr. Luchini regarding causation.

The trial commissioner was not persuaded by Dr. Bernstein’s opinions. He found that the claimant’s left shoulder and left arm injuries, including ulnar neuropathy and carpal tunnel syndrome, were compensable, and ordered that the claimant be authorized to continue treating with Dr. Aversa and to pursue the doctor’s recommended treatment. He also awarded the claimant “temporary partial benefits as per 31-308a,” having noted the claimant’s testimony that he had unsuccessfully searched for light duty employment, and that he had worked with this Commission’s Department of Workers’ Rehabilitation in an effort to find employment. The respondents have appealed that decision, along with the denial of their Motion to Correct.

The respondents’ primary claim of error is their objection to the trier’s finding that the claimant’s shoulder injury of April 22, 2001 was attributable to his earlier compensable injury. They argue that there is insufficient evidence in the record to support the existence of such a causal relationship. After reviewing the record, we disagree with this allegation of error.

The trial commissioner is the person charged with determining whether or not a claimant has offered sufficient evidence to carry his burden of proving a compensable injury. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Perrelli v. Yale University, 4350 CRB-4-01-1 (Dec. 20, 2001). It is the trier’s exclusive prerogative to evaluate the credibility of the evidence, including the testimony of both lay and expert witnesses. Perrelli, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board’s role in reviewing the decision of a trial commissioner is not to retry the facts, or second-guess the inferences that the trier has drawn regarding the credibility of the evidence in the record. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy, supra. As long as there is evidence in the record sufficient to support the trier’s findings, we must uphold those findings, and we may not otherwise disturb a trier’s findings unless material, undisputed facts have been omitted. Krajewski v. Atlantic Machine Tool Works, Inc., 4500 CRB-6-02-3 (Mar. 7, 2003); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002).

At the formal hearing, the claimant testified as follows: “As I started to shovel and pick up some snow, I had a sharp pain down by forearm into my hand. I dropped the shovel and threw it to the side. . . . I slipped partially on the snow when I dropped the shovel because I started to turn. I didn’t want the shovel there because I flung my arm out. When I started to slip, I just threw myself away because the shovel would have been directly underneath me.” April 23, 2002 Transcript, pp. 18-19. On cross-examination, he clarified that he wasn’t leaning on the shovel for balance, but was scooping up snow and turning to throw it off the shovel when he felt severe pain in his arm. “I just let the shovel go and I must have stepped up on the curb. . . . If I didn’t have the pain, I wouldn’t have had to drop the shovel and I wouldn’t be here today.” Id., p. 27. The reports of Dr. Luchini and Dr. Aversa both reflect this description of the injury as the causal mechanism by which the claimant fell and hurt his shoulder, and neither doctor expressed doubt that this explanation was accurate in light of the claimant’s symptoms. Claimant’s Exhibits A, E.

The respondents’ argument that “a rational mind could not trace the injury sustained to the left shoulder to a proximate cause set in motion by employment” is unpersuasive. See Brief, p. 5. The claimant’s previous elbow injury was well-documented, and Dr. Luchini made it clear in his April 17, 2002 report that the claimant’s left upper extremity pain was due to that earlier compensable injury. Claimant’s Exhibit A. It was this pain that caused the claimant to drop his snow shovel on or about April 22, 2001, precipitating his fall. Such an injury mechanism is comprehensible by a layperson as well as a physician; the act of throwing aside a snow shovel in reaction to a sudden shock of pain in one’s arm could imaginably cause a person to slip, stumble or misstep. See Perrelli, supra (“where the nature of an injury is relatively simple to determine, a doctor’s opinion demonstrating such a connection is not essential to a finding of compensability”). The commissioner likewise found this explanation of causation to be persuasive, and we may not override that decision on review. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001).

The respondents also contend that the trier’s award of benefits pursuant to § 31-308a C.G.S. was inappropriate because no doctor’s report addressed the claimant’s work capacity following his return to work on December 18, 2000. We believe that the evidence is sufficient to support the trier’s finding. On June 19, 2000, Dr. Aversa stated that the claimant would be able to do light duty work “but with no repetitive use of the left arm,” which precluded him from continuing to work in the physically demanding construction field. Claimant’s Exhibit E. As of November 9, 2000, Dr. Luchini noted that the claimant had been unable to return to his occupation as a laborer because of pain and weakness in his elbow following surgery. Claimant’s Exhibit A. At that point, the claimant had reached maximum medical improvement, and became eligible to collect his 10% permanent partial impairment award beginning on November 10, 2000. Dr. Aversa then cleared him to return to work on December 18, 2000.

The respondents accurately observe that there is little medical evidence in the record beyond that date that specifically addresses the claimant’s work capacity. However, the trier had no reason to presume that the claimant’s left arm restriction had somehow subsided, particularly in light of his subsequent physical problems due to his torn rotator cuff. As found by the trier, the claimant testified that he had been doing job searches since the April 2001 injury, and had also worked with one of this Commission’s rehabilitation coordinators. Transcript, pp. 29-30. The claimant also stated that he still suffers from numbness and tingling in his hand and pain in his arm and shoulder due to his compensable injuries. Id., p. 31. These findings sufficiently support the conclusion that the claimant is qualified to collect additional, discretionary permanency benefits under § 31-308a.

The trier explicitly left the amount and duration of the claimant’s benefits open for determination at future proceedings. Findings, ¶ C. Thus, the claimant’s actual work capacity may need to be clarified for purposes of determining his earning potential “based upon the nature and extent of the injury, the training, education and experience of the employee, [and] the availability of work for persons with such physical condition and at the employee’s age,” as required by § 31-308a. At this stage of review, however, we find no error in the trier’s baseline determination of eligibility.

The trial commissioner’s decision is accordingly affirmed.

Commissioners James J. Metro and Howard M. Belkin concur.

1 The trier’s decision reflects a date of December 28, 2000; Findings, ¶ 7; but Dr. Aversa’s report releasing the claimant back to work is actually dated December 18, 2000. Respondents’ Exhibit 3. BACK TO TEXT

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