5370 CRB-1-08-8 (2009). Sierra v. C & S Wholesale Grocers, Inc.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5370 CRB-1-08-8 (2009). Sierra v. C & S Wholesale Grocers, Inc CASE NO.5370 CRB-1-08-8COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSIONSEPTEMBER 23, 2009SIXTO SIERRA CLAIMANT-APPELLANT v. C & S WHOLESALE GROCERS, INC. EMPLOYER and GALLAGHER BASSETT SERVICES INSURER RESPONDENTS-APPELLEESAPPEARANCES: The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, 96 Webster Street, Hartford, CT 06114. The respondents were represented by Nicholas W. Francis, Esq., Law Offices of Jonathan M. Zajac, P.O. Box 699, Avon, CT 06001. This Petition for Review(fn1) from the Findings and Orders of the Commissioner acting for the First District was heard May 29, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Randy L. Cohen and Stephen B. Delaney.OPINION JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals from the Findings and Orders issued in response to his claim. The most significant issue in his appeal is the argument that the trial commissioner erred in his determination of the claimant's permanent disability rating.(fn2) The claimant believes that the evidence he presented as to the permanent disability rating assessed against a non-scheduled body part should have caused an increase in the permanent disability rating assessed against a scheduled body part. The claimant argues the commissioner's decision herein is contrary to the Supreme Court's opinion in Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793 (1999). We do not find that either Barton or a later case, Safford v. Owens Brockway, 262 Conn. 526 (2003) compelled the trial commissioner to reach the conclusion sought by the claimant. The claimant had the burden in this matter of persuading the trial commissioner that the injury he sustained to his abdomen acted to increase the disability level of his spine. The trial commissioner was not persuaded by the claimant's evidence. Since we do not find legal error, we affirm the trial commissioner's decision and dismiss this appeal.Prior to entering findings of fact the commissioner took administrative notice of various agreements and forms already entered in the matter, which may be summarized as follows:

A Voluntary Agreement received by the Commission on October 13, 2006 and approved by the Commission on October 26, 2006, wherein it was agreed that the Claimant suffered a compensable injury to his abdomen and back.

A Form 36 approved by the Commission effective November 18, 2005 for the Claimant's release to sedentary work by Rocco Orlando III, M.D., the Claimant's treating physician.

A Form 36 (and attachment) received by the Commission on July 7, 2006 and approved by the Commission effective October 31, 2006 by agreement of the parties where by the parties agreed that the Claimant had reached maximum medical improvement as to his spine, per W. Jay Krompinger, M.D., and had sustained an eight percent (8%) permanent partial disability of his spine.

A Form 36 received by the Commission on March 16, 2007 and approved by the Commission effective March 16, 2007 whereby the Respondent claimed an overpayment of $6,382.60.

A 31-308a Order dated July 10, 2007 whereby the Claimant requested payment of said benefits and, by agreement of the parties, benefits were paid at the rate of $300 per week for 8.65 weeks commencing May 30, 2007, with job searches waived.

The commissioner found the claimant was born in the Dominican Republic in 1973 and had not finished high school. The claimant was married in 2000 and has two minor children. The claimant testified that he reads and writes in Spanish, but cannot read or write in English. An interpreter translated the claimant's testimony at the formal hearing into English. The claimant commenced working for the respondent C & S Wholesale Grocers, Inc. in April 2000. He was employed as a "selector" at C & S, which required him to utilize a pallet jack in the warehouse to pick the orders, followed by wrapping the pallets in plastic, and then loading them onto a truck. While working at C & S the claimant said on December 14, 2004, he suffered a crush injury to his abdomen while operating a fork lift. Following the accident he was transported to Baystate Medical Center on the date of injury. He...