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Ramirez-Ortiz v. Wal-Mart Stores, Inc.

CASE NO. 5492 CRB-8-09-8



AUGUST 25, 2010











The claimant was represented by J. Anthony Doran, Esq., Butler, Norris & Gold, 254 Propect Avenue, Hartford, CT 06106-2041.

The respondents were represented by Nicholas Varunes, Esq., Varunes & Associates, P.C., 5 Grand Street, Hartford, CT 06106.

This Petition for Review from the August 17, 2009 Finding and Award of the Commissioner acting for the Eighth District was heard February 26, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Wal-Mart Stores, Inc., and Claims Management, Inc., have appealed from a Finding and Award issued to the claimant finding that her wrist injury was compensable. The respondents contest the finding of compensability, as well as contesting the award to the claimant of the cost of transcripts and the cost of depositions. The respondents also argue they should have been awarded attorney’s fees for the claimant’s undue delay. We find the trial commissioner reached a reasonable conclusion on compensability after reviewing the evidence and dismiss that element of the appeal. We also find the commissioner acted in a discretionary capacity in denying the respondents’ bid for sanctions and dismiss that element of the appeal. We agree with the respondents that the trial commissioner should not have granted an award of costs to the claimant and direct this element of relief be stricken from the Finding and Award. In all other respects we affirm the Finding and Award.

The trial commissioner reached the following findings of fact which are pertinent to our consideration. The claimant filed a Form 30C on October 16, 2008 asserting she was injured while working for the respondent Wal-Mart on February 25, 2008. It is acknowledged she was employed by Wal-Mart at that time. The claimant sought benefits for an injury to her right master hand which had occurred as a result of repetitive trauma. The respondents filed two Form 43’s which contested compensability of the injury. The claimant testified at the Formal Hearing as to the nature of her job duties at Wal-Mart. She testified that although she had been placed on light duty as a greeter in September 2007 that she still worked with her hands putting stickers on returned articles and passing out flyers. The claimant testified as to the repetitive use of a sticker gun and the amount of force required to operate the instrument.

Two of the claimant’s supervisors, Maria Gonzalez and Patricia Martin, also testified as to the nature of the claimant’s work at the Cromwell Wal-Mart store. The claimant also introduced various medical reports as exhibits. The respondents also presented various written exhibits including an attorney’s bill of costs.

The trial commissioner considered the medical evidence presented before him. The claimant’s primary care physician, Dr. Matthew Huddleston, examined her on February 25, 2008 and noted “right wrist with swelling, distal to ulnar head, assessed as carpal tunnel syndrome.” He examined her again on March 25, 2008 and noted “wrist symptoms, uncertain etiology.” Dr. Huddleston referred the claimant to Dr. Robert Geist, who examined her on March 6, 2008. Dr. Geist diagnosed the claimant with carpal tunnel syndrome and recommended nerve conduction testing. In response to a request from Commissioner Stephen Delaney, Dr. Geist drafted a medical letter dated July 1, 2008 stating that “it is [his] opinion that her current symptoms of right carpal tunnel syndrome are related to her work at Wal-Mart.” Dr. Geist based his opinion on a narrative by the claimant, wherein she described her duties as very repetitive and included opening, unpacking and labeling boxes. Dr. Geist took the claimant out of work from March 20, 2008 until she returned to work light-duty on April 12th or 13th in 2008.

The claimant was also examined by Dr. Duffield Ashmead and the respondents’ doctor at Concentra Medical Center, Dr. Paul Acampora. Dr. Acampora assessed the claimant’s injury as a “wrist sprain, unspecified site” without comment as to the cause of the injury. The respondents had a respondents’ medical examination performed by Dr. Donald Kelly on October 8, 2008. Dr. Kelly determined the claimant had “right cubital tunnel syndrome and probable right carpal tunnel syndrome” and he recommended nerve conduction testing.

The trial commissioner also considered the respondents’ request for attorney’s fees resulting from the cancellation of the January 15, 2009 Formal Hearing due to the absence of an interpreter. The respondents argued that the claimant’s failure to provide an interpreter unduly delayed the completion of the formal hearing. The claimant’s attorney objected to this motion asserting that additional issues were presented that had not been noticed, and the hearing had to be continued to consider these issues.

Based on this record the trial commissioner found the claimant offered credible testimony as to the issue of using her hands repetitively at work. He found the opinions of Dr. Geist and Dr. Kelly credible and persuasive. The commissioner found Dr. Geist had attributed causation of the claimant’s right hand ailments to her work at Wal-Mart, and found Dr. Geist’s conclusions as to the claimant’s disability credible and persuasive. The commissioner also found Dr. Kelly had determined the claimant had right cubital tunnel syndrome as well as right carpal tunnel syndrome. The trial commissioner denied the respondents’ motion for attorney’s fees, there were additional formal hearing sessions required. The commissioner denied the claimant’s bid to find the respondents responsible for unreasonable contest or delay; but did award the claimant all costs in pursuit of this particular claim, including all transcripts and deposition costs, etc.

The respondents filed a Motion to Correct which was denied in this entirety, and in response have pursued this appeal. During the pendency of this appeal the respondents sought an extension of time to file briefs. They filed their brief after the anticipated briefing deadline but prior to this motion being granted. The claimant filed a motion to dismiss the appeal as a result of the delayed filing. We conclude that our approval of the motion to extend time cured any procedural defect herein. We also find the claimant was able to present her brief to this tribunal without prejudice.

The gravamen of the respondents’ appeal is based on their view that the claimant’s testimony and her narrative to her physicians was simply too inconsistent to form the foundation behind reliable medical opinions to support causation. They rely on the Appellate Court’s majority opinion in Marandino v. Prometheus Pharmacy, 105 Conn. App. 669 (2008) for their argument the trial commissioner’s decision cannot be upheld. However, the Supreme Court overturned the Appellate Court’s earlier opinion when it issued Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010) and it is the Supreme Court opinion on the sufficiency of evidence to establish causation that is binding on this tribunal.

In Marandino the Supreme Court rejected the reasoning of the Appellate Court majority opinion that deemed the expert opinions supporting compensability in that case to be inadequate. The Supreme Court pointed out that once the treating physician’s report was admitted into evidence “the trier of fact - the commissioner - was free to determine the weight to be afforded to that evidence.” Id., at 594. The Supreme Court restated the “totality of the evidence” test enunciated in such cases as Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142 (1972) and O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999). “Moreover, as we have explained previously herein, it is proper to consider medical evidence along with all other evidence to determine whether an injury is related to the employment,” Marandino, supra, at 595. (Emphasis in original). Finally, the Supreme Court rejected the respondents’ reliance on DiNuzzo v. Dan Perkins Chevrolet Geo., 294 Conn. 132 (2009), pointing out the expert opinion deemed unreliable in DiNuzzo was deficient both in the absence of a necessary examination to support the findings, as well as not being sufficiently unequivocal as to the causation of the claimant’s death. Id., 595-597.

We find the medical evidence presented in the present matter was, if anything, more definitive than the evidence which the Supreme Court found sufficient to establish causation in Marandino. Dr. Geist opined unequivocally in his July 1, 2008 letter that “her current symptoms of right carpal tunnel syndrome are related to her work at Walmart.” Claimant’s Exhibit 1-5. Dr. Kelly’s October 8, 2008 report stated unequivocally “[i]t is clear from the patient’s work that this is a compensable injury.” Claimant’s Exhibit 1-10. The respondents argue that these opinions should be discounted as the claimant proffered an unreliable work history to her physicians and offered inconsistent testimony at the formal hearing. We are not persuaded by this argument.

We note that the claimant in this matter does not speak English and the medical reports indicate that she may have had difficulty providing an accurate narrative to her treating physicians. See, for example, Dr. Ashmead’s March 18, 2008 report; “…the interaction proving fairly typically frustrating due to linguistic constraints.” Claimant’s Exhibit 1-7. Under these circumstances we must rely on the determination of the trial commissioner in resolving whatever discrepancies may exist between the claimant’s testimony and the medical reports. The respondent does acknowledge that prior to September 2007 the claimant was employed at Wal-Mart stocking shelves and opening boxes. Respondents’ Brief, p. 3. This work certainly would be consistent with the repetitive trauma alleged by the claimant, and it appears much of the respondents’ argument is centered over a dispute as to when the claimant ceased performing this work.1 The trial commissioner may discount medical evidence when he or she concludes it is 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), cert. denied, 287 Conn. 910 (2008). In the present case, the trial commissioner found the claimant credible and persuasive. Findings, ¶ A. We cannot revisit this determination of witness credibility, Burton v. Mottolese, 267 Conn. 1, 40 (2003), and we must defer to the trial commissioner when it relates to whether he believes a witnesses’ narrative is consistent with the mechanism of injury. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007) and Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006). The trial commissioner’s determination herein was not “clearly erroneous,” Berube, supra, nor did it “vitiate logic.” In re Shaquanna M., 61 Conn. App. 592, 603 (2001).2

As noted by the claimant, this is a case where there is no medical opinion contesting compensability. If the claimant was credible in her testimony that she sustained her injury at work, then she established her claim to benefits. The trial commissioner determined the claimant was credible and such a decision cannot be reversed by an appellate panel.

Having determined the trial commissioner acted within his discretion in finding the claimant sustained a compensable injury we now turn to the questions as to whether the trial commissioner properly denied the respondents’ bid to sanction the claimant for undue delay. The respondents state that the January 15, 2009 Formal Hearing was cancelled due to the claimant’s failure to provide “a competent, licensed and unbiased interpreter.” Respondents’ Brief, p. 15. We reiterate that it is the claimant’s obligation to obtain an appropriate interpreter for a formal hearing if he or she is not conversant in English, and this Commission cannot rely on the services of law firm employees to perform this role. The respondents correctly state that this issue would provide grounds for the trial commissioner to sanction the claimant. Such a decision is a judgment call, however, Duffy v. Town of Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006), and we may not reverse such a decision unless it is arbitrary and capricious. See Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008). The trial commissioner identified other reasons that also caused the hearing to be delayed, Findings, ¶ G and we must respect this conclusion.3

Finally, we consider the issue as to whether the trial commissioner’s award of costs Finding, ¶ I to the claimant was appropriate. The respondents acknowledge that § 31-298 C.G.S. does permit the trial commissioner to award the claimant the cost of providing deposition testimony, but point out that no deposition testimony was submitted in this proceeding. Therefore, the respondents argue the award is unsupported by the facts and law and is inherently ambiguous. We are not persuaded by the claimant’s argument that this order may be read to include payment for formal hearing transcripts as the “plain meaning” (see § 1-2z C.G.S.) of the statute limits reimbursement to costs associated with the testimony of a “medical provider.” Our precedent in Heilweil v. Town of Montville-Board of Education, 5161 CRB-8-06-11 (October 24, 2007) stands for the proposition that § 31-298 C.G.S. does not permit the reimbursement of costs not specifically authorized by statute. Therefore, we agree with the respondents on this issue and order Finding, ¶ I stricken from the Finding and Award.

The Finding and Award, with the exception of Finding, ¶ I, is herein affirmed. The respondents appeal is dismissed.

Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.

1 We note the respondents own expert witness, Dr. Kelly, noted that his October 8, 2008 opinion was based on the claimant’s entire five year employment at Wal-Mart, wherein she spent the first four years “as a stocker of shelves and a pricer of products using a pricing gun.” Dr. Kelly’s report also associated the onset of symptoms to the “summer of 2007,” prior to her transfer to the position of greeter. Claimant’s Exhibit 1-10. We are not persuaded that the medical evidence provided to the commissioner is inconsistent with the claimant’s testimony that she sustained a repetitive trauma injury at work. BACK TO TEXT

2 We must extend great deference to a trial commissioner’s evaluation of evidence “[A]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004). This is not a case akin to Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007) where the result contravened precedent or where the trial commissioner did not consider material and undisputed evidence. Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007). Unlike the present case, those cases reached the “clearly erroneous” threshold. BACK TO TEXT

3 Respondents offer no authority that the trial commissioner was obligated, as a matter of law, to sanction the claimant for failing to provide an appropriate interpreter. Therefore, we must defer to his decision not to sanction the claimant. Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008). BACK TO TEXT

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