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CASE NO. 5499 CRB-8-09-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 1, 2010
UTC/PRATT & WHITNEY
AIG CLAIMS SERVICES, INC. n/k/a CHARTIS INSURANCE
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 Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, LLC, 95 Glastonbury Boulevard, Suite 216, Glastonbury, CT 06033.
This Petition for Review from the September 8, 2009 Finding and Award of the Commissioner acting for the Eighth District was heard March 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 in this matter have appealed from a Finding and Award granted to the claimant who asserted she suffered a compensable shoulder injury. The respondents argue that the trial commissioner reached a decision on compensability which lacked sufficient foundation in the evidence and cannot be upheld. We conclude the trial commissioner had sufficient grounds to support his finding. Therefore, as we may not usurp the fact finding role of the trial commissioner, we affirm the Finding and Award and dismiss this appeal.
The trial commissioner reached the following Findings of Fact. The claimant was employed by Pratt & Whitney as a materials handler in June 2008. This job required the claimant to retrieve parts from a warehouse when she was given a “pull ticket” to obtain a specific part. The boxes containing the parts were located on fixed racks in different locations and some of the racks were up to forty feet in height. The claimant would operate a fork-lift to retrieve the box off the rack and then search through the box for the specific part. The claimant would search through a wooden box which included numerous smaller cardboard and plastic boxes inside. While some of the parts the claimant needed to retrieve were as small as 1/10 of an ounce, the boxes were considerably heavier and had to be moved to retrieve the parts. The claimant also operated a machine known as a “Remstar” which rotated storage shelves which were located on ground level.
Prior to June 2, 2008 the claimant had not suffered any injury to her right shoulder. While working that day the claimant testified that she was reaching over a cardboard box and she felt her right shoulder pop and experienced pain. The incident occurred shortly prior to her lunch break. The claimant took an over the counter pain medication and went to lunch. After lunch she finished retrieving the parts from the box, returned the box to the shelf and then logged the ID codes for the parts into the firm’s computer system. The claimant testified she used her left hand to scan the parts into the computer system. At that point the claimant said she hoped the pain would dissipate and she decided not to report the accident. She completed her work day without seeking medical attention. At the end of the day the claimant drove home with a co-worker, Linda Hallisey. The claimant had Ms. Hallisey drive home because of the pain and asked Ms. Hallisey for a Tylenol.
The next morning the claimant still was experiencing pain and Ms. Hallisey suggested to the claimant that she seek medical attention at the respondent’s medical office. The claimant did contact the firm’s medical office after she attempted to work that day because after she tried to “pull” one ticket she found the pain too intense to continue. The claimant was evaluated by a nurse and had an appointment set up with the plant doctor. She was referred to Dr. Gordon Zimmermann, an orthopedist, and an appointment was scheduled for June 9, 2008.1 Dr. Zimmerman ordered an MRI which led to a diagnosis of tendonitis. Dr. Zimmerman continued to treat the claimant and on August 18 he opined “within a reasonable degree of medical probability that the partially torn rotator cuff injury arose out of and during the course of her employment.” Claimant’s Exhibit F. The claimant originally received conservative treatment but ultimately underwent a right shoulder arthroscopy with subacromial decompression and distal clavicle debridement of the rotator cuff on December 5, 2008.
The respondents presented testimony contesting liability, suggesting that the claimant was injured while moving to a new residence. The claimant denied this suggestion, but did testify that she had been living both at her parents’ home in Westbrook and at Ms. Hallisey’s home in Columbia in the weeks prior to the incident. Both Ms. Hallisey and the claimant testified that they had been in Maine the weekend prior to the incident. The claimant’s supervisor, Richard Meckensturn, interviewed the claimant when she was seeking medical treatment on June 3, 2008 and said she had declined to work overtime the prior weekend or for Labor Day weekend because she was “going away or moving.” Mr. Meckenstrum did confirm that during the interview which he said lasted forty-five minutes, the claimant was in a great deal of pain and said she had not slept the night before. Ms. Alicia Sidlik, a senior environmental health and safety specialist with the respondent, was also present at that meeting. Ms. Sidlik testified that at the June 3 meeting the claimant said she could not provide a phone number as she had recently moved.
The claimant testified that her father, brother and Ms. Hallisey had moved her items from Westbrook to Columbia sometime in September or October of 2008.
Based on these subordinate facts, the trial commissioner found the claimant credible and found she suffered a work-related injury on June 2, 2008. He ordered the respondents to pay documented medical costs, out of pocket expenses and indemnity benefits. The respondents filed a Motion to Correct which was denied in its entirety, and subsequently have pursued this appeal.
The respondents present two main avenues of argument on the Finding and Award. They argue that the trial commissioner should have credited their witnesses and should have placed greater weight on the claimant’s alleged move out of her home. They also assert, citing DiNuzzo v. Dan Perkins Chevrolet Geo, 294 Conn. 132 (2009), that the medical opinions supporting compensability were inadequate to support the Finding and Award. We find neither argument persuasive.
In considering the testimony of the claimant and that of the respondents’ witnesses the trial commissioner is solely responsible for determining which account he believes is more credible. We may intercede only if this conclusion was “clearly erroneous” by lacking evidence, misapplying the law or reaching an improper inference. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). The trial commissioner concluded that the claimant was a credible witness and we may not revisit issues as to witness credibility when the claimant presents live testimony to the trier of fact, Burton v. Mottolese, 267 Conn. 1, 40 (2003). The trial commissioner denied the respondents’ Motion to Correct to add findings dwelling on the claimant’s alleged move and we must infer he did not find the evidence provided by the respondents on this point either probative or persuasive. See Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003), Jacobson v. General Dynamics Corp./Electric Boat Division, 4642 CRB-2-03-3 (March 12, 2004). If the trial commissioner believed the claimant’s account that she had suffered her injury at her place of employment he had a reasonable basis not to credit the respondents’ evidence which focused on an alternative explanation for her injury.
The respondents argue that the opinion of Dr. Zimmerman is based on an understanding of the mechanism of the claimant’s injury which is inconsistent with the claimant’s testimony. As the respondents view the evidence, the claimant testified she was “reaching over a box” when she felt pain (June 3, 2009 hearing transcript, p. 15) while Dr. Zimmerman stated the cause of injury was due to the claimant “pulling parts out of a box.” Claimant’s Exhibit F. The respondents argue that these statements are somehow mutually exclusive. We are not persuaded that the semantic difference herein is material in nature. As we have recently pointed out in Ramirez-Ortiz v. Wal-Mart Stores, 5492 CRB-8-09-8 (August 25, 2010) the Supreme Court’s recent opinion in Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010) clarified the DiNuzzo precedent and permits a trial commissioner 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).
In Marandino the treating physician opined unequivocally that the claimant’s arm injury was compensable. The treating physician in this case reached a similar conclusion as to the claimant’s shoulder injury. Unlike the opinion deemed unreliable in DiNuzzo, Dr. Zimmerman’s opinion was rendered to the standard delineated in Struckman v. Burns, 205 Conn. 542 (1987) and relied on a physical examination performed of the claimant. While the respondents clearly disagree with Dr. Zimmerman’s opinion, they failed to depose this witness or have him testify at the formal hearing. As we held in Berube, supra, “ 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.” The opinions of Dr. Zimmerman clearly were sufficient to establish causation and as the trial commissioner found them persuasive and credible, this panel may not retry that determination. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001).
At its core, the respondents are seeking to retry the facts of this case. The claimant presented sufficient evidence to support her claim and the trial commissioner chose to find it credible and persuasive. Fair v. People’s Savings Bank, 207 Conn. 535 (1988) stands for the proposition we may not offer relief to the respondents. The Finding and Award is herein affirmed. The respondents’ appeal is dismissed.
Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.
1 The Finding and Award listed this and certain other dates as having occurred in 2009. We will consider these matters as scrivener’s errors, and shall afford them no weight in this appeal. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). BACK TO TEXT