Burns v. Wal-Mart Stores, Inc.

The claimant was represented by Guy DePaul, Esq., Jones, Damia, Kaufman, Borofsky & DePaul, 301 Main Street, P.O. Box 157, Danbury, CT 06813-0157.

The respondents were represented by Nicholas C. Varunes, Esq., Varunes & Associates, P.C., Five Grand Street, Hartford, CT 06106.

This Petition for Review from the May 1, 2008 Finding and Award of the Commissioner acting for the Seventh District was heard November 21, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this case have appealed the Finding and Award granted to the claimant, who asserts her current back ailments are the result of a compensable injury suffered while working for the respondents at their Danbury, CT store. The respondents argue that the claimant did not need surgery until she moved to South Carolina and started working at a store there; and argue her current medical condition must be the result of an injury sustained after she relocated to the South. We find the trial commissioner relied on probative evidence linking the claimant’s condition to the Connecticut injury. Therefore, we affirm the Finding and Award and dismiss this appeal.

The trial commissioner found the following facts. He found there was no dispute as to whether the claimant suffered a compensable injury to her low back and right leg on April 18, 2003 while employed by Wal-Mart in Connecticut. He also found the parties agreed the claimant had relocated to South Carolina following that injury and commenced working for a Wal-Mart in that state.1 When the claimant moved to South Carolina she began treating with Dr. William Mills. Dr. Mills treated the claimant’s pain complaints in October 2003 by performing a bilateral facet injection. The respondents authorized Dr. Mills as the claimant’s treating physician in May 2004. On March 31, 2004 the respondents had the claimant examined by their doctor, A. Mason Ahearn in South Carolina. Dr. Ahearn recommended a discogram and associated the claimant’s present back pain to her 2003 work injury in Connecticut. On May 21, 2004, the claimant underwent a discogram authorized by respondent/insurer which revealed pain reproduction at L4-5 and at L5-S1 levels.

Dr. Mills recommended back surgery, and the respondent/insurer denied authorization for this surgery. The claimant had the surgery performed on December 27, 2004 and paid for the procedure through her private insurance. The respondents argued that the tests performed before the claimant left Connecticut did not diagnose a problem at the L5-S1 disc level. In addition, respondents argue the claimant was not a surgical candidate at that time and the claimant continued working until just before the December 2004 surgery. The trial commissioner however pointed to a rather continuous period of treatment from the 2003 injury as well as opinions of Dr. Mills providing an explanation for the claimant’s medical condition. Since the 2004 surgery both Dr. Mills and another physician in South Carolina, Dr. Karen McCutcheon, have opined that the claimant is presently totally disabled.

Based on these subordinate facts the trial commissioner concluded that the original 2003 injury was compensable and “[c]laimant’s chronology of treatment as set forth in Finding #11 hereinabove is overwhelming proof that Claimant never recovered from said injury and never ended her treatment for same, requiring surgery in December 2004.” The commissioner discounted her continued work for Wal-Mart, citing Dr. Mills’s opinion that the claimant did not suffer a new injury. The commissioner found the claimant’s treatment subsequent to April 18, 2003, including the surgery and subsequent pain management treatment, was causally linked to the initial injury. The commissioner also found the “[c]laimant was totally disabled from December 27, 2004 through August 28, 2006 and, no evidence being presented indicating Claimant is other than totally disabled, continuing.”

The respondents filed a Motion to Correct, seeking to add findings consistent with the claimant’s injury being a new injury which occurred after she moved to South Carolina. The trial commissioner denied this motion in toto, and the respondents pursued this appeal.

We first wish to deal with an administrative matter. The claimant seeks to have additional evidence admitted at this time. For the reasons stated in Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009) we deny this motion. We are not satisfied there is a sufficient basis to now consider evidence (a respondents’ medical examination) which was not available to either party at the time of the formal hearing.

The appellants’ argument focuses on the concept that the claimant’s present medical condition is due to events which occurred after she left the state of Connecticut and moved to South Carolina. They argue that pursuant to the test delineated in Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181 (1991) that Connecticut lacks jurisdiction over the claimant’s injury. We have recently considered the issue of jurisdiction in two recent cases, Healey v. Hawkeye Construction, LLC, 5336 CRB-2-08-4 (February 26, 2009) and Zolla v. John Cheeseman Trucking, Inc., 5261 CRB-5-07-8 (August 4, 2008), appeal dismissed, A.C. 30251 (March 5, 2009). Our review of the Cleveland standard as we have applied it in Healey and Zolla establishes this Commission has proper jurisdiction over this claim.

In Zolla we considered the most recent Supreme Court case on whether this Commission has jurisdiction when an employee from another state is injured in Connecticut. In Jaiguay v. Vasquez, 287 Conn. 323, 346 (2008), the Supreme Court outlined its most recent interpretation of the Cleveland precedent.

Therefore, we must look to the record before the trial commissioner and the findings he reached to determine if any of the three prongs of the Cleveland test were met and if so, whether the relationship was significant enough to conclude “this state has a sufficient interest in having an injured employee receive an award of benefits under the laws of this state.” Jaiguay, supra, at 345.

The trial commissioner concluded that two physicians had opined that the claimant’s present medical condition was the sequelae of the Connecticut injury. The respondents claim this conclusion was “unreasonable.” The respondents in Wiggins v. Middletown, 5300 CRB-8-07-12 (January 15, 2009) made a similar argument that the claimant’s delay in seeking treatment made it unreasonable for the trial commissioner to link the claimant’s condition to an old injury, but we pointed out “this issue is one of those ‘prototypical questions of fact’ which limits the scrutiny we may apply on review. Prescott v. Community Health Center, Inc., 4426 CRB 8-01-8 (August 23, 2002).” The respondents do not argue that Dr. Mills or Dr. Ahearn failed to offer probative testimony on the issue of causation. Since the trial commissioner was presented with probative testimony which linked the claimant’s ailment to a physical injury which occurred while she was in Connecticut working for a Connecticut employer, we must respect the factual findings reached from this evidence.2

Given this expert testimony credited by the trial commissioner, we cannot conclude that his conclusion that Connecticut’s interest was “sufficiently significant to warrant an award of benefits under its workers’ compensation statutes” Jaiguay, at 346 was “clearly erroneous.” Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006).

Counsel for the respondents appear to base his argument on the unstated position that the claimant’s decision to move out of Connecticut caused jurisdiction over her compensable 2003 injury to lapse. There is no precedent for this position and we specifically reiterate this Commission maintains continuing jurisdiction over such claimants. The expert testimony in this case found that the Connecticut injury was the cause of the claimant’s present condition. We have long held a trial commissioner may determine an initial injury is the cause of the claimant’s present medical condition. Lamontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008).3 The expert testimony supports the commissioner’s findings.

We find that the trial commissioner’s decision herein was based on a foundation of evidence which he determined was probative. This evidence supported a finding of Connecticut jurisdiction. Since we cannot retry such a case on appeal, we affirm the Finding and Award and dismiss this appeal.4

Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.

1 The Finding and Award discusses whether the Connecticut and South Carolina stores are owned by separate but affiliated corporate entities. We do not find that is a material issue in the disposition of this appeal. BACK TO TEXT

2 Compare with Healey v. Hawkeye Construction, LLC, 5336 CRB-2-08-4 (February 26, 2009) where the claimant was injured while out of state working for an out-of-state employer. In that case, notwithstanding the argument the employment contract had been formed in Connecticut, we upheld the finding that Connecticut lacked a significant interest in the injury. In the present case, we believe all three prongs of Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181 (1991) test (location of injury, location of employment relationship; place of contract) are fulfilled if one relates the present condition to the 2003 Connecticut injury. As noted, evidence on the record supported that conclusion. BACK TO TEXT

3 Unlike LaMontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008) respondents point to no expert testimony in their appeal ascribing the claimant’s condition to a subsequent injury; instead we are to presume that she must have aggravated her condition while working in South Carolina. This is the sort of “speculation or conjecture” a trial commissioner may not rely on. See DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn. App. 336 (2007). BACK TO TEXT

4 We uphold the trial commissioner’s denial of the respondents’ Motion to Correct. This motion sought to interpose the respondents’ conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result. 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