Riveiro v. Bakeries

CARLOS RIVEIRO v. FRESH START BAKERIES ET AL.

AC 36836

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued May 13, 2015

August 7, 2015

Lavine, Sheldon and Keller, Js.

officially released August 11, 2015

(Appeal from Worker's Compensation Review Board.)

John J. Morgan, for the appellant (plaintiff).

Anne Kelly Zovas, for the appellees (defendants).

Opinion

LAVINE, J. The plaintiff, Carlos Riveiro, appeals from the decision of the Workers' Compensation Review Board (board) affirming the Workers' Compensation Commissioner's (commissioner) decisions denying his motion for judgment and the commissioner's findings and denial of his claim for benefits in favor of his employer, the defendant Fresh Start Bakeries (employer).¹ The plaintiff claims that the commissioner should not have allowed the defendants to challenge whether his claimed injury arose out of and occurred in the scope of the plaintiff's employment because they did not provide sufficient notice in their form 43² pursuant to General Statutes § 31-294c (b). The plaintiff also claims that the commissioner unreasonably denied his claim for benefits, specifically claiming that the commissioner improperly failed to credit the medical evidence that relied on the plaintiff's account of how the claimed injury occurred. We affirm the decision of the board.

The following facts, as found by the commissioner, and procedural history are relevant to this appeal. On July 12, 2010, the plaintiff began working for the employer as a sanitation worker. One of the plaintiff's duties was to move large wheeled containers loaded with contaminated dough onto a computerized scale for weighing, and then dispose of the dough. The containers each weighed approximately 100 pounds when empty and several hundred pounds when full. On March 9, 2011, the plaintiff claims that he and his coworkers, Herminio Veloz and Naisha Patel, were moving a container loaded with 1000 pounds of dough. The plaintiff claims that Patel then left him and Veloz to finish disposing of the dough. The plaintiff also claims that the wheel on the container broke while they were moving it, causing the container to roll back on his leg. The plaintiff claims that he felt his lower back crack. Patel then came back and finished disposing of the dough with Veloz. After the plaintiff underwent medical examinations, physicians recommended that he undergo lumbar fusion surgery.

The plaintiff claims that on the date of the injury, he mentioned it to Patel, who told him to report it to one of his supervisors. The plaintiff claims that he reported his injury to the lead sanitation worker, Delma Ortiz. Ortiz testified at the hearing before the commissioner that she did not work on March 9, 2011, as it was a Wednesday, her usual day off. Moreover, Ortiz had heard the plaintiff complain of back problems prior to March, 2011, but she did not find out about the plaintiff's claim that he was injured at work on March 9, 2011, until the plaintiff reported it to the employer's office of human resources on March 22, 2011. On that date, he initially told the human resources manager, Kim Green, that he was requesting leave under the Family Medical Leave Act³ to undergo back surgery. When Green informed him that he was not eligible for leave, the plaintiff then claimed that he wanted to report a work injury that occurred on March 1, 2011. Green told him that he did not work that day, and the plaintiff then claimed that he was injured on March 9, 2011. The plaintiff went to two different physicians for examination on March 22, 2011. One of the physicians took a history from the plaintiff that stated that the plaintiff was injured on March 1, 2011.

The employer required employees to make daily reports for the sanitation department in which employees were supposed to report any equipment that broke and any injuries that occurred on a particular day, accompanied by an accident report. The plaintiff signed the March 9, 2011 report, but made no note of his alleged injury or the broken container. The commissioner also found that although the plaintiff claimed that the container that injured him weighed 1000 pounds, the March 9, 2011 daily report did not list a container weighing more than 858 pounds.

On April 1, 2011, the plaintiff completed his form 30C⁴ providing notice of a claim for compensation and the commissioner received it on April 4, 2011. The defendants timely filed their form 43 to contest the plaintiff's claim, stating therein that "[Defendants] contend that there is a lack of medical evidence supporting causal connection of the low back injury to the claimant's employment. [Defendants] contend that there is lack of medical documentation supporting current and ongoing disability as required by Connecticut General Statutes [§] 31-294.⁵ [Defendants] therefore deny liability for medical bills, disabilities, etc. in connection with said claim/injury."

A formal hearing before the commissioner commenced on November 1, 2011, and the record was closed at a hearing session on November 13, 2012. The relevant issue before the commissioner for purposes of this appeal was whether the plaintiff suffered a compensable injury to his back on March 9, 2011, while working for the employer. At the hearing on November 1, 2011, the plaintiff made an oral motion for judgment in his favor, asserting that the defendants were limited to the defenses as listed in the form 43. The plaintiff argued that the defendants were allowed to contest only the sufficiency of the medical evidence and not the underlying issue of whether the injury arose out of and occurred in the course of the plaintiff's employment. On November 7, 2011, the commissioner issued a written decision denying the motion. The commissioner stated that "[t]he [defendants'] form 43 is sufficient to deny this claim. Investigation into the cause of the injury which may contradict the history given to medical providers is part and parcel of challenging the medical evidence."

Thereafter, the commissioner denied the plaintiff's claim for benefits, finding that his testimony was unreliable and the description of how his injury happened was not corroborated by any of the witnesses who testified. She noted that neither party asked or subpoenaed Patel, the person whom the plaintiff supposedly first told about his injury, to testify at the hearing. Furthermore, she doubted the plaintiff's story, noting his testimony that even though the container was so heavy that the wheel broke, Veloz and Patel were still able to finish disposing of the dough without incident. The commissioner found that the witnesses other than the plaintiff were credible. She further stated that she did not credit the portion of the medical evidence supporting the causation of the injury, because, although the physicians providing the evidence were credible, their conclusions about the cause of the injury were based solely on the plaintiff's unreliable narrative.

The plaintiff did not file a motion to correct the commissioner's factual findings, pursuant to Section 31-3014 of the Regulations of Connecticut State Agencies,⁶ but appealed to the board, claiming that because the defendants' disclaimer focused on medical evidence, the commissioner erred in not crediting the medical evidence supporting compensability. The plaintiff also argued that the defendants were limited to the specific grounds stated in their disclaimer. Essentially, the plaintiff asserted the same argument that he had made before the commissioner. The board interpreted the argument as a claim by the plaintiff that the "disclaimer amounted to a concession that the [plaintiff] sustained an injury in the course of his employment on March 9, 2011 as [the defendants were] only contesting the lack of contemporaneous supporting documentation."

The board disagreed with the plaintiff's argument, finding that the disclaimer sufficiently put him on notice that the defendants were contesting that his injury arose out of and in the course of his employment. The board concluded that the defendants' disclaimer challenged one of the essential elements of the plaintiff's prima facie case. The board affirmed the commissioner's ruling, emphasizing that on appeal it gives great deference to the trial commissioner's determinations of a witness's credibility. The board also emphasized that when a commissioner finds a claimant's narrative unreliable, a commissioner is entitled to discredit medical evidence dependent on that narrative. See Abbotts v. Pace Motor Lines, Inc., No. 4974, CRB 4-05-7 (July 28, 2006), aff'd, 106 Conn. App. 436, 942 A.2d 505, cert. denied, 287 Conn. 910, 950 A.2d 1284 (2008). The board found that the commissioner in the present case reached a reasonable conclusion that the plaintiff failed to prove that his injuries were the result of an accident arising out of and occurring in the course of his employment. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the plaintiff claims that the board improperly affirmed the commissioner's dismissal of his claim. Specifically, the plaintiff claims that the defendants' form 43 disclaimer was insufficient under § 31-294c (b)⁷ to allow them to contest causation because the form 43 specifically stated that they were challenging the sufficiency of the medical evidence. The plaintiff essentially argues that using the term "medical evidence" was a concession by the defendants that a compensable injury occurred, thus precluding them from challenging that the injury arose out of and occurred in the course of the plaintiff's employment. The plaintiff further claims that because the defendants challenged the claim based on "lack of medical evidence," and all of the physicians agreed that the plaintiff had suffered an injury, it was unreasonable for the board to affirm the commissioner's denial of the plaintiff's claim. We disagree.

Before addressing the plaintiff's specific claims, we set forth the...