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Shepard v. UTC/Carrier Corp.

CASE NO. 5556 CRB-4-10-5



JULY 27, 2011











The claimant was represented by Scott M. Maser, Esq., Law Offices of Scott M. Maser, 7 Wakeley Street, Seymour, CT 06483.

The respondents were represented by Richard L. Aiken, Jr., Esq., Pomeranz, Drayton & Stabnick, LLC, 95 Glastonbury Boulevard, Suite 216, Glastonbury, CT 06033-4412.

This Petition for Review1 from the May 10, 2010 Finding and Dismissal of the Commissioner acting for the Fourth District was heard January 21, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Christine L. Engel and Stephen B. Delaney.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals from a Finding and Dismissal which determined that the claimant was no longer entitled to temporary partial disability benefits. The claimant argues that the trial commissioner improperly disregarded the opinions of a treating physician, and should have provided an explanation as to why he found the opinions of other physicians persuasive and credible. We have reviewed the record and find no error. We affirm the Finding and Dismissal and dismiss this appeal.

The trial commissioner found the following facts at the conclusion of the formal hearing. The claimant was employed by the respondent UTC as a warehouse associate and his job involved lifting boxes of air conditioner coils which weighed between 30 and 125 pounds, in addition to lifting other boxes weighing more than 100 pounds. The claimant worked 8 to 12 hours a day five days a week. The claimant was involved in two accidents, one a work related injury on October 12, 2005 and the second an unrelated motor vehicle accident around January 2003. The 2003 accident caused the claimant to miss time from work. Following the compensable 2005 accident, where the claimant injured his back when he slipped on water at work, the claimant began treating with Dr. Adrian W. Klufas of Bridgeport. Dr. Klufas put him out of work and referred him to Dr. Patrick Kwok, an orthopedic doctor from Fairfield. Dr. Margaret Galiani, a radiologist, reported on October 14, 2005 that the claimant’s x-rays showed no spondylolysis or spondylolisthesis was present and the claimant had a normal lumbar spine. On October 24, 2005 Dr. Kwok initially returned the claimant to work with a 20 pound lifting restriction. Dr. Kwok was advised by the claimant he had previously experienced back pain secondary to Crohn’s disease.

The claimant had an MRI performed on November 12, 2005 by Dr. Gerard Muro of Stratford which was negative for disc herniation or encroachment on the thecal sac or neural foramina. Dr. Kwok subsequently returned the claimant to light-duty work on November 25, 2005 and to full-duty without restrictions on December 26, 2005. The claimant began treating with Dr. Peter T. Naiman of Milford, who reported on May 9, 2006 the claimant had a neurological injury with motor weakness throughout the right lower extremity, including foot drop and peroneal palsy because of the motor vehicle accident. Dr. Naiman found the claimant had full lumbosacral range of motion with the mechanical signs of lumbosacral spine having resolved. Dr. Naiman’s report was attached to two Form 36’s filed by the respondent, who sought to end the claimant’s temporary partial disability benefits. The respondent relied on Dr. Naiman’s opinion that the claimant’s work restrictions were attributable to the previous motor vehicle accident, and not the compensable 2005 accident. The Form 36’s were approved by Commissioner Senich at an informal hearing held on June 14, 2006 and the claimant’s temporary partial benefits were discontinued.

The claimant testified at the formal hearing he last worked for the respondent in May 2006 and collected unemployment compensation benefits on more than one occasion between May 2006 and December 2009. He testified that during that period he had worked for a number of employers, including Vernon Computer Leasing, Pitney Bowes, and United Staging and Rigging, where he worked between March 2008 and January 2009. At United Staging and Rigging the claimant’s job duties involved lifting, and he testified that his back only occasionally stiffened in cold weather. The claimant further testified that his back pain from the fall was different than his pain from Crohn’s disease. He also testified that at the time of the formal hearing he was working part-time at the Cooperative Education Services and Best Buy and his back felt fine and he had no issues. His treater, Dr. Naiman, wrote in a March 10, 2009 report the claimant had full range of motion of the lumbosacral spine, that no spasm or tenderness existed, and that as pertained to the lumbar spine the claimant’s neurological examination was stable with no evidence of radicular component related to the lumbosacral injury.

Based on these facts the trial commissioner concluded the x-rays and the MRI taken shortly after the claimant’s compensable 2005 accident showed the claimant’s lumbar spine was negative and he had no disc herniation. The trial commissioner found the opinions of Dr. Klufas, Dr. Galiani, Dr. Muro, and Dr. Kwok persuasive as to the claimant’s lumbar spine condition. The trial commissioner further found Dr. Naiman’s opinion persuasive that the claimant’s work restrictions were due to the injuries sustained in the prior non-work-related motor vehicle accident. As the claimant failed to meet his burden of proof that he was still disabled at the time the Form 36’s were approved, the trial commissioner dismissed the claim for temporary partial disability benefits and determined the Firm 36’s should not be reopened.

The claimant filed a Motion to Correct, which sought to add findings which would be more supportive of the claimant’s position. The motion was denied in its entirety. The claimant then commenced the present appeal. The gravamen of his appeal is the trial commissioner failed to appropriately credit medical evidence and testimony of the claimant which would have supported a finding that the claimant’s current condition is the result of the 2005 compensable injury. Had the trial commissioner done so, in the view of the claimant, he would have awarded continued temporary partial disability benefits.

In his brief, the claimant asserts the trial commissioner erred by not relying on a June 2, 2006 report by Dr. Rolf Langeland which attributes the claimant’s lumbar spine condition not on the claimant’s motor vehicle accident, but on the compensable injury at work. The claimant argues that the trial commissioner should have explained why he did not find this evidence credible or persuasive. We do not find error.

We note that a number of the proposed corrections denied by the trial commissioner referenced Dr. Langeland’s report. When a trial commissioner is asked to grant a correction of the record to include evidence not previously contained in his or her findings, and he or she denies the Motion to Correct, we may properly infer the commissioner did not find the evidence probative or persuasive. Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011)(Per Curiam).2

It is black letter law that the claimant has the burden of proving his or her disability before this commission. See Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006) which cited Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001). “It is well settled in workers’ compensation cases that the injured employee bears the burden of proof. . . . .” Id., 447. Entitlement to benefits under § 31-308(a) C.G.S. constitutes a factual question for the trial commissioner.

“[W]e have stated many times that whether a claimant has satisfied the criteria of § 31-308(a) is essentially a factual issue for the trier to decide.” Shepard v. Wethersfield Offset, 4886 CRB-1-04-11 (October 20, 2005) [aff’d, 98 Conn. App. 682 (2006), cert. denied, 281 Conn. 911 (2007)] and that, “[t]he burden of proving entitlement to benefits is on the claimant . . . .”

Dudley, supra.

In the present case the trial commissioner clearly cited a substantial quantum of medical evidence, including report’s from the claimant’s treating physician, which suggested that the compensable injury the claimant suffered in 2005 was not material to any issues related to the claimant’s lumbar spine. See Conclusions, ¶¶ E and F. In addition, this evidence, along with the claimant’s own testimony, did not suggest the claimant’s back injury, whatever its genesis, materially impeded the claimant’s ability to work. See Findings, ¶¶ 16 and 19.

We note that prior appellants have argued that the trial commissioner in a case was obligated to provide a detailed explanation as to why they chose not to rely on certain evidence in the record. We have definitively explained what a trial commissioner must include in their findings. They must explain how their decision is supported by probative evidence, but need not explain why other evidence unsupportive of their ultimate decision was not relied upon. See Biehn v. Bridgeport, 5232 CRB-4-07-6 (September 11, 2008).

Administrative Regulation § 31-301-3 clearly states that the “finding of the commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from the evidence or merely evidential facts, nor the reasons for his conclusions.” (Emphasis added.. “Thus, by the express terms of § 31-301-3 of the regulations, the scope of the commissioner’s finding and award is limited to the ‘ultimate, relevant and material facts essential to the case ....” Cable v. Bic Corp., 270 Conn. 433, 440 (2004), quoting Luciana v. New Canaan Cemetery Assn., 3644 CRB-7-97-7 (August 12, 1998). Id.

As the Supreme Court further stated in Cable, supra, “in other words, the commissioner is ‘not required to explain…how he has arrived at a final decision after culling through the evidence’ Loomis v. Colchester Egg Farm, 3047, CRB-5-95-4 (December 10, 1996).” Cable, supra, 440-441. If the trial commissioner did not deem a specific medical report “relevant and material” the commissioner was not obligated to include that report in the finding or to explain why this conclusion was reached.

On appeal, this panel must provide “every reasonable presumption” supportive of the trial commissioner’s finding, Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009). We find the trial commissioner’s decision herein is supported by a sufficient quantum of probative evidence on the record. As we may not retry the facts of this case, Fair v. People’s Savings Bank, 207 Conn. 535 (1988), we affirm the Finding and Dismissal and dismiss this appeal.

Commissioners Christine L. Engel and Stephen B. Delaney concur in this opinion.

1 We note that a postponement and extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 The claimant argues that the trial commissioner was obligated to explain why he did not find Dr. Langeland’s report probative, citing Alvarez v. Wal-Mart Stores, Inc., 5378 CRB-5-08-9 (July 27, 2009). We disagree as the Alvarez case dealt exclusively with a commissioner’s examiner retained pursuant to § 31-294f C.G.S. There was no commissioner’s examination performed in this matter and hence, Alvarez is inapplicable. BACK TO TEXT

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