Sweet v. Coca Cola Bottling Company

CASE NO. 5262 CRB-1-07-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 27, 2008

BRYAN SWEET

CLAIMANT-APPELLEE

v.

COCA COLA BOTTLING COMPANY

EMPLOYER

and

SEDGWICK CLAIMS MANAGEMENT SERVICES

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Jan van der Werff, Esq., Law Office of Jan van der Werff, 1 Barnard Lane, Suite 202, Bloomfield, CT 06002.

The respondents were represented by Robert Jahn, Esq., Morrissey Mahoney, LLP, One Constitution Plaza, 10th Floor, Hartford, CT 06103.

This Petition for Review from the August 2, 2007 Finding and Award 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.

OPINION

ERNIE R. WALKER, COMMISSIONER. The respondents have appealed from a Finding and Award to the claimant in this matter, who alleges his herniated disc was the result of a compensable injury. We find the primary focus of the respondents’ appeal revisits the credibility assessment of the trial commissioner. Since appellate panels cannot second guess such determinations, we affirm the trial commissioner and dismiss this appeal.

The trial commissioner found the following facts in the Finding and Award of August 2, 2007. The claimant, an employee of the respondent Coca-Cola Bottling Co., filed a Form 30C on June 12, 2006 asserting a work related injury to his neck, shoulder and arm had occurred on May 22, 2006. The claimant had worked prior to that date as a product selector which required him to physically lift cases of soda and other bottled drinks and place them on pallets. The work load was expected to be 30 to 40 pallets loaded per shift. During the month prior to the filing of the Form 30C the claimant had split time between working as a product selector and working as a porter, which involved cleaning up and did not require the lifting of products.

The claimant had advised his supervisor on May 19, 2006 he was having significant pain lifting and the supervisor, Len Marley, assigned him to work as a porter. The claimant had previously attributed his shoulder pain to an awkward sleeping position, and did not report the pain as a work-related injury. On May 24, 2006 the claimant treated with Dr. Stephen Rigatti of Old Saybrook Family Practice who identified a left shoulder impingement. Dr. Rigatti was advised as to the lifting involved in the claimant’s work, but noted the pain seemed to have started due to the sleep posture. The claimant’s symptoms worsened and he was examined by another physician at Old Saybrook Family Practice, Dr. Adam Perrin, who believed that yard work was the immediate cause of the shoulder pain. Dr. Perrin ordered a MRI. The MRI revealed a moderately large herniated disc to the left of the midline at C6-7 and a smaller focal disc to the left of midline at C7-T1.

The claimant testified Dr. Perrin referred him to a neurosurgeon, Dr. Inam U. Kureshi. Dr. Kureshi examined the claimant on July 11, 2006 and determined that due to claimant’s injury at work on May 19, 2006 that a discectomy and fusion was required. Dr. Kureshi performed this operation on September 14, 2006. The medical bills for this procedure were advanced by the claimant’s Teamsters Local insurance plan. Dr. Kureshi testified at a deposition that there was a medical probability that the claimant’s lifting at work was the cause of the disc herniation. The respondents did not present expert testimony challenging this opinion.

Based on these subordinate facts the trial commissioner found the claimant sustained a compensable injury to his spine while employed by the respondent on May 19, 2006. The commissioner found Dr. Kureshi’s testimony credible and consistent either with a specific injury, or an injury due to repetitive trauma, which the commissioner concluded was more likely than a single specific injury. The commissioner awarded the claimant benefits for the injury and directed the respondents to reimburse the Teamsters for the health benefits provided the claimant. The respondents filed a Motion to Correct seeking to find facts consistent with denial of the claim. The trial commissioner denied this motion and the respondents have appealed.

The respondents’ appeal is based on two main points. They argue that the trial commissioner’s decision was inconsistent in not clearly determining whether the injury the claimant sustained was due to a single injury or due to repetitive trauma. They also argue that the claimant’s testimony was not credible, and therefore, the testimony of Dr. Kureshi as to causation should have been discounted. We do not find either argument persuades us that the Finding and Award should be overturned.

The general standard of review in such matters was delineated last year in McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).

We begin by stating that the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Id.

In considering the issue of whether the trial commissioner erred in his finding as to whether the claimant suffered a repetitive trauma injury, we look to precedent on this issue wherein generally the purpose of determining whether the claimant suffered a single accidental injury or not was to determine whether the claim was untimely under § 31-294c C.G.S. In this case it does not matter. The claimant’s Form 30C was filed within days of the alleged date of a single injury, and immediately after the claimant was performing the daily routine of lifting soda cases onto pallets. Under either theory the claim was brought in a timely fashion to preserve jurisdiction.

In Hummel v. Marten Transport, 4667 CRB 5-03-5 (May 3, 2004) appeal dismissed for lack of final judgment, 90 Conn. App. 9 (2005), aff’d, 282 Conn. 477 (2007) we considered the issue of causation of a truck driver’s fatal heart attack. The respondents in Hummel argued the evidence did not support a finding of occupational disease. This board held the difference in definition was jurisdictional in nature and under the facts in that case it was immaterial.

The purpose of distinguishing whether a claim fits into one of the aforementioned categories is to determine the applicable time limitation period by which a claim for compensation must be filed pursuant to § 31-294c C.G.S. If a claimant can prove an injury results from an occupational disease, then the three-year statute of limitations applies, as opposed to a one-year statute of limitations claims due to accidental injury or repetitive trauma. In this matter, the claimant filed the notice of claim within one year of the accident which resulted in his death. Therefore, it does not matter which category of injury occurred, as long as the claim was brought within one year of the date of injury. Id.

We also look to the holding in the touchstone case on repetitive trauma claims, Discuillo v. Stone & Webster, 242 Conn. 570 (1997), wherein the Supreme Court noted the interplay present between the two statutory forms of recovery and noted “a series of repetitive workplace traumas can have the unintended result of causing an ‘accidental’ injury to an employee.” Id., 580.1

The claimant in this instance still had the burden of producing probative expert testimony on the causation of his injury Keenan v. Union Camp Corp., 49 Conn. App. 280, 282 (1998). The trial commissioner relied on the opinions of Dr. Kureshi, whom he found credible. Dr. Kureshi testified at his deposition that the cause of the disc herniation was consistent with the claimant “lifting these, building these pallets” on May 19, 2006. Claimant’s Exhibit H, pp. 6-8. On cross-examination the doctor noted that the claimant’s stories had been somewhat inconsistent and that he had complained of a two week period of shoulder pain. Dr. Kureshi explained he was not certain of why the claimant would have related pain during this period.

Q: From your assessment, Doctor, what would have caused the two weeks of shoulder pain prior to May 22?

A: I don’t know. However, if he, you know, if he had been loading pallets of soda on a daily basis, it’s possible that that could have been the cause of it prior to then. However, I’m getting two different histories here. One of course is my history where he reported it to me on the 19th. When, in fact, this history suggests that it had been done two weeks maybe prior to that. But if he had been loading these pallets all along, it’s hard to know exactly when this occurred (Emphasis added) Claimant’s Exhibit H, p. 9-10.

A reasonable conclusion from reading the testimony supportive of causation is that the trial commissioner was satisfied that the expert witness identified the cause of the injury, but was not able to identify the date it occurred with specificity. While the evidence herein is more supportive of a finding of a specific accidental injury at some unspecified date in the spring of 2006, we do not believe the commissioner’s determination in his Finding and Award, ¶ C that, “[i]t is more likely that the Claimant’s injury resulted from repetitive trauma….,” constitutes reversible error. See Reeve v. Eleven Ives Street LLC, 5146 CRB-7-06-10 (November 5, 2007) (describing unsworn statement as “testimony” not reversible error). See also Vitoria v. Professional Employment & Temps, 5217 CRB-2-07-4 (April 4, 2008) (“the commissioner’s decision did not rest substantially upon the evidence to which the claimant objects,” quoting Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995)).

In general, we find this case very similar to another case where we upheld a trial commissioner who determined the claimant had suffered a compensable disc herniation. In Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007) the trial commissioner concluded the claimant had suffered a disc herniation lifting oil drums. The respondents challenged the claimant’s narrative, wherein we concluded this was a matter of credibility for the trial commissioner to resolve. They also attacked the expert testimony on causation as being inconsistent. We again held that this is a factual matter for the trial commissioner to resolve.

The respondents evidently believe that the trial commissioner should have credited those statements of Dr. Spero supportive of their position and disregarded that testimony supportive of the claimant. The respondents are mistaken in believing the trial commissioner disregarded Dr. Spero’s testimony in toto; rather, it appears he credited the testimony of Dr. Spero which unequivocally linked the compensable injury with the current disc herniation. This is a decision within his discretion. Id.

The respondents’ other argument is to attack the testimony of the claimant as not being credible, and therefore, the expert opinion of Dr. Kureshi, who relied on the claimant’s testimony, should be discounted as being based on an unreliable patient narrative. Both this board and the Appellate Court have upheld the right of a trial commissioner to discount expert testimony based on an unreliable patient narrative. Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008). The problem herein is that we may infer the trial commissioner found the claimant credible in this matter.

Much as the instant case resembles Williams, supra, it also resembles another case where the trial commissioner found the claimant suffered a compensable disc herniation; Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). In Berube the respondents focused their attention on attacking the claimant’s credibility, and not his medical evidence.2 We pointed out, citing Burton v. Mottolese, 267 Conn. 1, 40 (2003), that an appellate panel cannot revisit a credibility determination as “it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.” We also noted “[w]here the veracity of a witness’ factual representations is at issue, the trier’s credibility assessment is virtually inviolable on appeal. Canevari [v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001).]” Berube, supra. Obviously, if the trial commissioner had believed the alternative explanations for the claimant’s injury advanced by the respondents’ witnesses and presented by respondents’ counsel, he would not have found the injury compensable. The trial commissioner chose to believe the claimant and that is his prerogative.

This appeal boils down to a dispute over the claimant’s credibility and that matter can only be resolved by the trier of fact.3 We affirm the Finding and Award and dismiss this appeal.

Commissioners Amado J. Vargas and Charles F. Senich concur in this opinion.

1 Further support for the position this issue does not warrant reversal is in Austin v. State/Dept of Correction, 5014 CRB-8-05-11 (November 8, 2006) where the claimant asserted he suffered an accidental injury at some unspecific date during a one year period. We held, “. . . the inaccuracy in a defective notice does not bar recovery, even where the employer shows that it was unaware of the injury and was prejudiced by the defect. A commissioner is not required to dismiss a claim just because the precise date of injury cannot be determined.” Id. BACK TO TEXT

2 The respondents in this matter chose not to hold a Respondent/Employer’s Medical Examination. As a result, they are bound by the trial commissioner’s evaluation of the treating physician’s testimony. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). While a trial commissioner can find uncontested medical evidence unpersuasive and deny a claim, Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006), in the present case the commissioner found Dr. Kureshi persuasive. BACK TO TEXT

3 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the respondents’ conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT