Daddona v. Waterbury Masonry and Foundation, Inc.

CASE NO. 4897 CRB-5-04-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 8, 2005

LEO DADDONA

CLAIMANT-APPELLANT

v.

WATERBURY MASONRY AND FOUNDATION, INC.

EMPLOYER

and

ZURICH NORTH AMERICA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondents were represented by Michael A. Burton, Esq., D’Attelo, Shields & La Bella, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067.

This Petition for Review from the December 3, 2004 Finding & Award of the Commissioner acting for the Fifth District was heard June 17, 2005 before a Compensation Review Board panel consisting of Commissioners Stephen B. Delaney, Michelle D. Truglia and James J. Metro.

OPINION

STEPHEN B. DELANEY, COMMISSIONER. The claimant appeals from the December 3, 2004 Finding and Award of the Commissioner acting for the Fifth District.1 The commissioner concluded the claimant suffered a compensable injury to his left shoulder and awarded the claimant a 50% permanent partial disability for the loss of use of the left shoulder. The commissioner also concluded that the claimant’s refusal to undergo left shoulder surgery was not unreasonable. Additionally, the commissioner denied claimant’s request for temporary total benefits and further concluded the claimant’s neck problem was not compensable. The claimant filed this appeal.

The pertinent facts in this matter are as follows. On February 15, 1999 the claimant tripped and fell at work. The claimant reported the accident immediately and sought medical treatment. The claimant was initially treated at the Industrial Health Clinic by Dr. Victor P. Wasilauskas. Dr. Wasilauskas referred the claimant to an orthopedist, Dr. Patrick Duffy. Dr. Duffy diagnosed the claimant as suffering from a rotator cuff problem. The August 19, 1999 initial evaluation report of Dr. Duffy cites a left shoulder injury as the sole reason for treatment. Dr. Duffy operated on the shoulder on January 13, 2000. Unfortunately, the claimant had a recurrence of his shoulder symptoms. An MRI done on June 1, 2000 indicated a left shoulder rotator cuff tear.

The claimant insists that he mentioned problems with his neck to Dr. Duffy. Dr. Duffy treated the claimant for about a year following the 1999 injury. However, none of the reports from Dr. Duffy reflects claimant’s neck complaints. In a March 29, 2000 report there is a notation that claimant is having right knee and right elbow trouble, however, the claimant concedes that the right elbow and right knee problems are not part of this claim. See Paragraph 20. The claimant’s hand written statement of September 1, 1999 refers to injuries to the arm, elbow and back. There was no mention of a neck injury.

In the course of these proceedings, the claimant saw a number of physicians including Dr. Regina Hillsman, M.D., Dr. Richard Matza, M.D., Dr. Marc N. Raad M.D., Dr. Michael J. Kaplan M.D., Dr. Enzo J. Sella M.D. and Dr. Frank Cucolo, D.C. Drs. Hillsman, Matza, Raad, and Cucolo all share the opinion that claimant’s neck problems are compensable. Dr. Sella was not of the opinion that claimant’s neck problems were a compensable injury. See e.g., Respondents’ Exhibit 11. Thus, whether the claimant sustained a compensable injury to his neck is a factual determination to be made by the commissioner. The commissioner must determine the weight and credibility to be accorded to the evidence presented. Sousa v. Intercity Development, LLC, 4878 CRB-8-04-10 (October 17, 2005); Parker v Manafort Brothers, 4857 CRB-7-04-9 (September 19, 2005). Further, as we recently noted in Claudio v. Better Bedding, 4786 CRB-1-04-2 (October 19, 2005), “[t]he trial commissioner ‘may give credit to all, part or none of the testimony given by a lay or expert witness, while also retaining the authority to reject evidence that superficially may appear to be uncontradicted.’ Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), [aff’d, 82 Conn. App. 905 (2004)(per curiam).]”

The claimant requests that the instant matter be remanded so as to give Dr. Sella and Dr. Kaplan an opportunity to revise their opinions in light of the results of MRI tests conducted March 6, 2003 and May 23, 2003. However as the hearings held in this matter were conducted well after the time these MRI’s were performed it was incumbent upon the claimant to seek the doctors’ updated opinions and present same while proceedings were being held at the trial level. The burden of proof in a Workers’ Compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001). The claimant cannot wait until after the trial commissioner issues a decision to procure evidence that was discoverable at the time of the trial level proceedings. Mahoney v. Bill Mann’s Tree Removal, Inc., 4776 CRB-4-04-1 (September 19, 2005).

“In the interest of finality and of judicial economy, it is important that a claimant offer all available evidence the first time his claim is being considered.” Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 84, 2150 CRB-3-94-9 (December 7, 1995). “If a claimant has failed to address relevant issues during the first set of formal hearing proceedings, he does not get a second, third or fourth bite at the apple when he later realizes that he forgot something. . . . [N]or may he indulge in a second opportunity to prove his case if he initially fails to meet his burden of proof.” Krajewski v. Atlantic Machine Tool Works, Inc., 4500 CRB-6-02-3 (March 7, 2003).”

Id.

The commissioner’s conclusions will not be disturbed unless they are not supported by the evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). The same appellate standard of review applies to the question of claimant’s status as totally disabled and the degree of permanent partial disability sustained by the claimant. The opinions of Dr. Sella and Dr. Kaplan, respectively support the trial commissioner’s conclusion on these issues. As the trial commissioner’s conclusion on this issue is supported by competent evidence the conclusion must stand.

We therefore affirm the December 3, 2004 Finding and Award of the Commissioner acting for the Fifth District.

Commissioners Michelle D. Truglia and James J. Metro concur.

1 We note during the course of these proceedings the claimant-appellant requested a postponement from the original scheduled date of oral argument and the request was granted. BACK TO TEXT