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CASE NO. 5251 CRB-1-07-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 27, 2008
PRATT & WHITNEY
AIG CLAIMS SERVICES, INC.
The claimant was represented by Mark Merrow, Esq., Law Offices of Mark Merrow, LLC, 760 Saybrook Road, Middletown, CT 06457.
The respondents were represented by James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the July 17, 2007 Finding and Dismissal of the Commissioner acting for the First District was heard February 29, 2008 before a Compensation Review Board panel consisting of Commissioners Ernie R. Walker, Amado J. Vargas and Charles F. Senich.
ERNIE R. WALKER, COMMISSIONER. This appeal is from a Finding and Dismissal which concluded the claimant, a mechanic for the respondent Pratt & Whitney, failed to prove that he filed a timely claim for a repetitive trauma injury to his rotator cuff. We conclude that the trial commissioner was not persuaded by the claimant’s evidence that he had been sufficiently exposed to the repetitive trauma responsible for this injury within one year of filing his claim. As a result, in accordance with Veilleux v. Complete Interior Systems, Inc., 5231 CRB-8-07-5 (May 22, 2008), this claim was untimely and subject to dismissal by the trial commissioner.
The trial commissioner found the following facts after a formal hearing which was held January 11, 2007 with the record closing May 31, 2007. The claimant had worked for the respondent since 1978 and while assembling and disassembling developmental engines, suffered a compensable knee injury in 1992. During this period the claimant would use a chain hoist to lift massive jet engines, some 12-13 feet high and 15-20 feet long, with a 107-inch fan diameter. Following his knee injury the claimant was assigned to do assembly work at floor level, and spent four to five years working in the blade assembly crib; where about 90% of the claimant’s work was done at bench level. He did no overhead work while assigned to the blade assembly crib.
Around 1996 the claimant left the blade assembly crib and worked for Ron Williams “on the line” at the respondent’s facility. Williams testified that the claimant did not do any overhead work while under his direct supervision. The claimant began treating with Dr. John Fulkerson in November 1997 for pain in his right shoulder. Dr. Fulkerson administered injections into the shoulder in November 1997 and February 1998 and when this modality failed to relieve the claimant’s pain, Dr. Fulkerson performed surgery on the claimant’s right shoulder on March 6, 1998.
Following the surgery the claimant filed a Form 30C on March 26, 1998 claiming a right rotator cuff syndrome due to repetitive trauma for the right shoulder. Dr. Fulkerson opined on April 28, 1998 that the claimant had related he had spent many years as an overhead mechanic and “given the nature of his problem with impingement and irritation of the rotator cuff, I believe that the overhead work could well have aggravated the shoulder and precipitated the rotator cuff and acromioclavicular problems.” Findings, ¶ 19.
Based on these subordinate facts the trial commissioner dismissed the claim, finding the claimant failed to prove that he suffered injurious exposure causing the repetitive traumatic injury to his right shoulder within one year prior to filing his Form 30C. The claimant filed a Motion to Correct to add testimony as to the nature of the work performed during the year prior to filing his claim, as well as a Motion for Articulation regarding the definition of “overhead work” applied by the trial commissioner. The commissioner denied these motions and the claimant has pursued this appeal.
The claimant’s appeal is based on the belief that the trial commissioner applied a vague and conclusory standard to the term “overhead work.” In the claimant’s opinion, he presented evidence supportive of a finding that the requisite exposure to the repetitive trauma had occurred within one year of filing his Form 30C, citing evidence that the claimant performed work during that period with his arms extended to head level. He believes this matter must be remanded for a new hearing to ascertain what standard governs the term “overhead work.”
In considering the scenario herein, we note that the trial commissioner was presented with the need to ascertain when the claimant last engaged in activities which contributed to the rotator cuff condition. This constitutes a finding of fact, and as an appellate panel we may only intercede when we determine the trial commissioner reached a finding without probative evidence to support his conclusion. “We may not retry a case on appeal and substitute our own findings for those of the trier.” Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007) citing Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000).
The claimant himself testified that he agreed he performed “less intensive work” after 1992. January 11, 2007 Transcript, pp. 28-29. The claimant also agreed that when he worked in the blade crib he did no overhead work with his arms and “the heavy work that you described was back from, like 78 to 90 correct, primarily.” Id., 48-49. Ronald Williams testified the claimant did no “overhead heavy work” while working in the blade crib. Id., 62. He further testified that the claimant had not worked “with his arms over his head” when he had worked directly under him. Id., 64.
The claimant focuses on testimony of Williams concerning the claimant’s weekend work. The testimony was that the claimant had to use chain falls to lower engines when working on the weekends. Williams testified that he understood “overhead work” to mean “keeping his arms above his head for an extended period of time,” which Williams said the claimant did not perform. Id., pp. 77-81.
The claimant argues in his brief that the definition of “overhead work” accepted by the trial commissioner in this case does not comport with the definition used by Dr. Fulkerson. There is one simple flaw with this argument. We have reviewed Claimant’s Exhibit D (Dr. Fulkerson’s reports) and there is no statement on the record as to what definition the treating physician applied to the term “overhead work.”1 The claimant’s evidence on causation simply uses the term with no further definition or explanation.
This case is similar to Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007) where the respondents argued that the claimant offered inadequate evidence on causation to support an award. In that case we determined that the treating physician did offer such evidence which proved persuasive to the trial commissioner. In addition there was “no evidence in the record or claim on appeal that the respondents were prevented from deposing Dr. Biondino or subpoenaing him to the hearing. Having forsaken their opportunity to challenge this evidence, as a result the respondents must accept the testimony “as is,” as well as the permissible inferences which the trial commissioner drew from it.” Id., n.3.
Similar to the circumstances in Berube, the claimant failed to offer as evidence a more definitive description of what their expert considered “overhead work.” As “it is well settled in workers’ compensation cases that the injured employee bears the burden of proof,” Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001), expert testimony on the issue of causation was extremely important in this case. “In making this determination, a trial commissioner must rely on expert testimony on this issue. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 152 (1972).” Huertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007).
In the absence of evidence from the treating physician defining the term “overhead work,” we cannot find fault with the trial commissioner reaching a definition based on the testimony of a lay witness who supervised the claimant. We cannot revisit a determination as to what evidence the trial commissioner concluded was more persuasive and probative. Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006). The respondents’ witness offered extensive testimony which the commissioner credited that the claimant had little or no exposure to what the commissioner concluded was “overhead work” during the one year period prior to filing the Form 30C. The commissioner could properly rely on this witness.
Therefore, unlike Goulbourne v. State/Department of Correction, 5192 CRB-1-07-1 (January 17, 2008), we do not find the trial commissioner’s findings inconsistent with the evidence on the record. The evidence on the record was unclear at best as to whether the claimant was exposed to the trauma which caused his rotator cuff injury within one year of filing his claim. The trial commissioner concluded the claimant failed to meet his burden of proof in that regard. See Dengler, supra, “we conclude the trial commissioner’s determination was a reasonable exercise of his discretion.” Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008). We therefore, affirm the Finding and Dismissal and dismiss this appeal.2
Commissioners Amado J. Vargas and Charles F. Senich concur in this opinion.
1 The sole expert testimony on causation was Dr. Fulkerson’s April 28, 1998 note which stated “The patient is asking about causality. He relates that he did work as an overhead mechanic for many years. Given the nature of his problem with impingement and irritation of the rotator cuff, I believe that the overhead work could well have aggravated the shoulder and precipitated the rotator cuff and acromioclavical problems. I would say that it is probable that this type of work would have caused aggravation of his right shoulder, resulting in the surgery.” While this statement might be definitive in linking the claimant’s pre-1990 work to the condition, we cannot conclude the trial commissioner was required to infer that this opinion also addressed the claimant’s work immediately prior to the surgery. “To the extent the respondents submitted expert testimony which was inaccurate, confusing or vague, equity does not serve to protect their interests. One can only expect the trier of fact to render a decision based on what evidence actually says, not what it should have said.” Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006). BACK TO TEXT
2 On appeal, the claimant sought a remand for a new hearing de novo. In light of the circumstances herein, we believe such relief would be inconsistent with precedent barring piecemeal litigation such as Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001) and Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005). We also find no error in the denial of the Motion to Correct, as it essentially sought to interpose the claimant’s conclusions as to the law and the facts presented. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. Dept. of Correction, 73 Conn. App. 718, (2002). Finally, while it might have been beneficial had the commissioner articulated his reasoning more fully, we can ascertain his intent from the plain language herein. Diaz v. Jaime Pineda a/k/a Jamie Pineda d/b/a J.P. Landscaping Company, 5244 CRB-7-07-7 (July 8, 2008). Any error due to the denial of the Motion for Articulation was harmless at best, Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007), since it was apparent the commissioner believed the claimant failed in his burden of persuasion. BACK TO TEXT
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