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McClaren v. Fed/Ex Ground Package System, Incorporated

CASE NO. 5619 CRB-1-11-1



JANUARY 24, 2012











The claimant appeared on her own behalf.

The respondents were represented by Richard W. Lynch, Esq., Lynch, Traub, Keefe & Errante, P.C., 52 Trumbull Street, P.O. Box 1612, New Haven, CT 06506-1612.

This Petition for Review from the December 22, 2010 Finding and Award of the Commissioner acting for the First District was heard October 28, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Daniel E. Dilzer.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from a Finding and Award issued to her following a series of compensable injuries she sustained while in the employ of the respondent, Fed/Ex Ground Package System, Incorporated. The gravamen of her appeal appears to center on the trial commissioner’s decision to rely on the opinions of the commissioner’s examiner. Based on those opinions, the trial commissioner decided the claimant had not presented persuasive evidence that additional medical treatment was required for her compensable injuries. We find this appeal seeks to retry this factual determination. As the trial commissioner’s factual determination was based on evidence he found probative, we may not overturn such a decision on appeal. The Finding and Award is affirmed and the appeal is dismissed.

The trial commissioner reached the following findings of fact supporting the Finding and Award. The commissioner took administrative notice of Form 30C’s filed seeking compensation for three separate injuries incurred on November 14, 2007 (a toe injury); February 8, 2008 (a head injury); and March 1, 2008 (injuries to her left side, arm, leg, elbow, shoulder, head and back). The trial commissioner took administrative notice that the respondent had not filed Form 43’s for the November 14, 2007 injury or the February 8, 2008 injury, but had filed three Form 43’s responsive to the three Form 30C’s the claimant filed for the March 1, 2008 injury. The claimant chose to appear at the formal hearing unrepresented by counsel. The trial commissioner reported the parties agreed the issues to be decided at the hearing were medical treatment, medical bills, and reimbursement to the claimant for medical expenses.

The claimant testified that as a result of the November 14, 2007 accident she was prescribed orthopedic shoes, was treated by Dr. Muzibul G. Chowdhury and subsequently released to full duty. The claimant presented records reflecting she incurred out-of-pocket expense as a result of this treatment. The claimant testified that since her February 8, 2008 head injury she continues to experience headaches.1 The trial commissioner found that she had been released to full duty. The claimant seeks a referral to a neurologist as a result of this injury. As for the March 1, 2008 injury, the claimant testified that all the body parts implicated in that incident (left arm, left leg, left knee, shoulders, fingers, hand, elbow, back and neck) were the source of ongoing medical issues. The claimant presented “voluminous medical records” detailing approximately 35 occasions where she had treated for these injuries at a number of treaters, including Hartford Hospital, Connecticut Occupational Medicine, Dr. Chowdhury, Dr. Wells C. Jacobsen, Halifax Regional Hospital, and St. Francis Hospital. The various providers examined and treated the claimant for complaints of bilateral knee pain, muscular pain, groin pain, chest pain, shoulder pain, elbow pain, thigh pain, back pain and hip pain. Diagnostic tests included x-rays, MRI, cardio evaluation, EKG and echocardiogram. No significant findings were made as a result of these tests.

The claimant’s medical records reflected prior injuries which the claimant confirmed via her testimony. She had undergone hernia repair surgery prior to 2008 and had been in motor vehicle accidents in 2000 and 2006, as well as a 2005 motor bike accident which had required surgery to the claimant’s knee and ACL ligament. The claimant had had two left knee surgeries in 1994 and 2005 and right second toe surgery at age 18.

The claimant was examined by the Commissioner’s examiner, Dr. Philo Willetts, on December 4, 2008. Dr. Willetts opined that as of that date the claimant had reached maximum medical improvement for an injury sustained on March 1, 2008. After taking prior injuries into consideration, he assigned a 2% percent permanent partial disability to her cervical spine as a result of that accident.

After considering this evidence the trial commissioner concluded the claimant had sustained a toe injury on November 14, 2007 that had occurred in the course of her employment and a head injury on February 8, 2008 which occurred in the course of her employment. The trial commissioner also concluded the claimant had failed to provide credible evidence that she required further treatment for either injury, noting that she had not causally linked her headaches with the 2008 injury. The commissioner also found the only credible evidence linking the claimant’s claim of multiple injuries sustained on March 1, 2008 was that of Dr. Willetts. The trial commissioner concluded Dr. Willett’s opinions were persuasive and credible. He adopted the opinion that “the Claimant sustained an injury to her cervical spine and has reached maximum medical improvement ‘for any possible injury sustained on that date.’” Findings, ¶ CC. The trial commissioner further found no credible evidence supporting further treatment had been submitted subsequent to Dr. Willett’s report.

Based on these findings and conclusions the trial commissioner found the claimant’s toe injury and head injury were compensable and directed the respondent to reimburse the claimant for all care rendered for these injuries. The commissioner noted that the parties had agreed during the course of the hearing that no adjudication would be made as to the compensability of the claims of injury to the claimant’s left side, arm, leg, knee, shoulders, fingers, hand, elbow or back. The trial commissioner ordered the respondent to pay the claimant permanent partial disability benefits equating to two (2%) percent of the cervical spine. The commissioner also held this matter open for further hearings.

The claimant filed a timely Petition for Review, and subsequently filed Reasons for Appeal and a Motion to Correct. The corrections granted by the trial commissioner did not materially change the overall decision. The respondents have filed a Motion to Dismiss asserting the claimant’s appeal documentation is inadequate. We deny this Motion to Dismiss, as we find the claimant commenced this appeal in a timely fashion and we are hesitant to dismiss an appeal on procedural grounds in the absence of prejudice to the respondent. See Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009) and Vitoria v. Professional Employment & Temps, 5217 CRB-2-07-4 (April 4, 2008). Therefore, we consider the merits of the claimant’s appeal.

We find the claimant has presented an abundant of factual documentation supportive of her belief that she is entitled for further treatment for her compensable injuries. We clearly understand the basis of the claimant’s argument but as an appellate panel we do not believe we may offer her relief in this forum. The claimant seeks to have this panel reweigh the evidence presented to the trial commissioner and reach a different result. We may not intercede in this fashion. Dengler v. Special Attention Health Services, 62 Conn. App. 440, 451 (2001). While we may act to reverse a trial commissioner’s legal conclusions when they are not grounded in probative evidence or are otherwise “clearly erroneous,” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007); we are satisfied the trial commissioner herein made a reasonable decision based on the record presented.

In particular, we are extremely hesitant to overrule a trial commissioner who bases his decision on the opinion of the commissioner’s examiner. See Damon, supra, and Carroll v. Flattery’s Landscaping, Inc., 5385 CRB-8-08-10 (September 24, 2009). The trial commissioner herein relied on Dr. Willett’s report. We are not persuaded that there was any reason the trial commissioner could not have relied on this report and having reviewed the report, the trial commissioner’s conclusions were consistent with the expert opinions contained therein.

We also note the primary focus of the claimant’s present argument is that she should receive additional treatment for her March 1, 2008 injury. The Finding and Award specifically states a variety of issues were not resolved at that time and are presumably the subject of additional hearings. We also note that a claimant’s medical condition is subject to a matter of ongoing proof, and if the claimant can demonstrate her medical condition has deteriorated since the date of Dr. Willett’s report, and this deterioration is the result of a compensable injury, these issues must be resolved at further hearings. See Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 684 (2008), aff’d in part; rev’d in part, 294 Conn. 564 (2010), Schenkel v. Richard Chevrolet, Inc., 5302 CRB-8-07-12 (November 21, 2008), aff’d, 123 Conn. App. 55 (2010) and Serluca v. Stone & Webster Engineering, 5118 CRB-8-06-8 (July 13, 2007).

We believe the appropriate forum to determine whether the claimant is entitled to have the respondents pay for medical treatment for her current medical condition is before the trial commissioner. We may not rule at this juncture on what decision the commissioner may reach based on the evidence presented at such future proceedings. We may only act after an appeal has been taken from a formal hearing. The claimant may pursue her remedies before the trial commissioner at this point in time.

The Finding and Award is affirmed. The appeal is dismissed.

Commissioners Scott A. Barton and Daniel E. Dilzer concur in this opinion.

1 The record herein is murky, in part, as the claimant sustained a number of injuries in short succession and then requested that all the injuries be addressed in a single formal hearing. The claimant filed a Form 30C on April 5, 2008 asserting a November 14, 2007 date of injury as well as a Form 30C on the same date asserting a February 8, 2008 date of injury. We therefore conclude the reference to a “February 14, 2007 head injury” in the Commissioner’s Findings is a scrivener’s error and conclude based on the evidence cited the findings refer to the February 8, 2008 injury in which the claimant had a medical clearance to return to work on February 11, 2008. Claimant’s Exhibit L. BACK TO TEXT

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