Fantano v. Stop & Shop Companies, Inc.

The claimant was represented by Christopher DeMarco, Esq., 33 Whitney Avenue, New Haven, CT 06510.

The respondent was represented by Clayton Quinn, Esq., The Quinn Law Firm, LLC, 204 S. Broad Street, Milford, CT 06460.

This Petition for Review from the May 3, 2005 Finding and Award of the Commissioner acting for the Third District was heard January 27, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, Stop and Shop Companies, Inc., herein appeal1 from a Finding and Award of May 3, 2005 reached by the Commissioner acting for the Third District. Their appeal is based on the position that the claimant, Kenneth Fantano, is barred from recovery since the trial commissioner improperly determined that his initial injury was not aggravated by a subsequent injury. Having reviewed the facts we find no error and therefore dismiss the appeal.

Mr. Fantano was employed by the respondent at their North Haven warehouse on September 8, 1999 when he suffered a compensable injury to his lower back. Findings, ¶ 1. Since that time, he has been out of work for all but eleven weeks due to the back injury. Findings, ¶ 2. Since July 2000, he has been treating with Dr. David Kloth in regards to that injury to his sacroiliac (SI) joint and lumbar facet. Findings, ¶ 4. A series of prolotherapy injections were administered over the next few years. Claimant’s Exhibit A, October 4, 2004 Transcript, p. 19-21. On October 27, 2002, the claimant was the victim of a non-work related motor vehicle accident on Route 8. Findings, ¶ 3. His vehicle was rear ended resulting in additional injuries to his cervical and lumbar spine. Findings, ¶ 8. October 4, 2004 Transcript, p. 22-24.

A Formal hearing was held on October 4, 2004. The one issue under consideration was whether the 2002 motor vehicle accident was the cause of the claimant’s medical needs, or was the respondent still obligated in regards for medical treatment relating to the 1999 compensable injury. In his Finding and Award, the trial commissioner determined that the injuries sustained in the 1999 work accident and the 2002 motor vehicle accident were separate and distinguishable and the respondent was responsible for the claimant’s medical benefits for the 1999 injury. Findings, ¶¶ B-D.

On May 31, 2005, the respondent filed a Motion to Correct, which sought to interpose their position that the 2002 motor vehicle accident substantially aggravated the 1999 compensable injury. The commissioner denied this Motion to Correct in its entirety. The respondent appealed seeking a remand to the commissioner to add facts to the records and determine that the commissioner’s findings were not consistent with the evidence presented.2

There is one central issue that must be decided upon appeal. The trial commissioner determined the claimant suffered two separate and distinct injuries. As an appellate body we must evaluate the medical testimony provided to the trial commissioner to determine whether his findings are supported by the evidence. Where the medical opinions are in conflict, the trial commissioner’s determination must stand so long as there is evidence to support it. Carney-Bastrzycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004). Dr. Kloth’s determination was that the 2002 motor vehicle accident caused a separate and distinct injury to the claimant and that following a short period of aggravation immediately after the accident the original compensable injury returned to a “baseline” condition. Findings, ¶¶ 5, 9. Claimant’s Exhibit A. July 22, 2004 letter. The respondent’s expert, Dr. Matthew Skolnick, testified at the hearing that the claimant’s original condition was substantially aggravated in the 2002 accident and that it was “extremely difficult, if not impossible,” to separate the medical impact of that accident from the original injury. October 4, 2004 Transcript, p. 81-82. The commissioner accepted Dr. Kloth’s conclusions and did not accept Dr. Skolnick’s. He was entitled as the finder of fact to do so. See Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000).3

The respondent also argues that Dr. Kloth’s opinions are fatally compromised based on his recommendation regarding the claimant’s suitability for a discectomy for disc herniation. He had been treating the claimant for both the work related accident and the motor vehicle accident. Both Dr. Skolnick and Dr. Kloth attribute the disc herniation to the motor vehicle accident. We have held that it is within the discretion of the trial commissioner to accept some, but not all, of a physician’s opinion. Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006). The commissioner specifically found the disc herniation not present prior to the motor vehicle accident, Findings, ¶ 8 and directed the respondent only to pay medical benefits associated with the work related accident. Findings, ¶ D. We decline to reverse a Finding and Award based on what it did not order the respondent to do.4

The respondent also claims it was error for the commissioner to deny its Motion to Correct insofar as it included “undisputed facts.” A review of the Motion to Correct indicates it essentially sought to interpose a different view of the evidence. “As the finder of fact the trier has the sole authority to decide what evidence is reliable and what is not, . . . .” Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004). Since the commissioner determined the matters in the respondent’s Motion to Correct were not relevant to the issues at hand, there was no error to their denial.

We therefore uphold the Finding and Award and dismiss the appeal.

Commissioners Stephen B. Delaney and Ernie R. Walker concur.

1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 The respondent cites the case of Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) as legal precedent arguing for a different result than what the trial commissioner reached. Hatt is distinguishable both in law and in fact from this case. In Hatt, the claimant had suffered a foot injury during her course of employment, and later incurred an additional foot injury in her course of employment. Unlike Hatt, however, the trial commissioner in this case found separate body parts had been injured in the two separate and distinct accidents, and unlike Hatt, the second injury was not work related. The legal dispute in Hatt over apportionment is also not present. BACK TO TEXT

3 The treating physician, Dr. Kloth, prepared an office note days after the motor vehicle accident finding the initial injury was aggravated. He submitted medical opinions later that the aggravation was short lived. The trial commissioner could rely on this opinion to support his Finding and Award. BACK TO TEXT

4 Respondent’s claim in their brief that the commissioner “blindly relied upon only a portion of a July 22, 2004 report by Dr. Kloth to justify the Finding and Award. This is unpersuasive and belied by Dr. Kloth’s July 10, 2003 letter to Attorney Kessler submitted as part of the record “I would note Mr. Fantano was involved in a MVA . . . . I have not included those injuries in any of his ratings, and those are separate and distinct problems . . . . Claimant’s Exhibit A. It is apparent Dr. Kloth has separated the injuries long before the Formal hearing. BACK TO TEXT