5391 CRB-8-08-11 (2009). KASPERN v. ESTES EXPRESS LINES.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5391 CRB-8-08-11 (2009). KASPERN v. ESTES EXPRESS LINES CASE NO. 5391 CRB-8-08-11COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSION OCTOBER 28, 2009MICHAEL J. KASPERN CLAIMANT-APPELLEE v. ESTES EXPRESS LINES EMPLOYER and GALLAGHER BASSETT SERVICES INSURER RESPONDENTS-APPELLANTS and LOWE'S EMPLOYER and SPECIALTY RISK SERVICES INSURER RESPONDENTS-APPELLEESAPPEARANCES: The claimant was represented by Charles Norris, Esq., and Thomas J. Sousa, Jr., Esq., Chinigo, Leone & Maruzo, LLP, 141 Broadway, P.O. Box 510, Norwich, CT 06360. Respondents Estes Express Lines and Gallagher Bassett Services were represented by Michael V. Vocalina, Esq., Cotter, Cotter & Mullins, LLC, 6515 Main Street, Suite 10, Trumbull, CT 06611. Respondents Lowe's and Specialty Risk Services were represented by David A. Kelly, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087. This Petition for Review from the October 16, 2008 Finding and Award of the Commissioner acting for the Second District was heard on May 29, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.OPINION JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the October 16, 2008 Finding and Award of the Commissioner acting for the Second District. We find no error and accordingly affirm the decision of the trial commissioner.(fn1)The following factual findings are pertinent to our review. On April 30, 2005, the claimant sustained a compensable injury to his left shoulder. At that time, the claimant was employed by Estes Express Lines as a tractor-trailer driver making deliveries for Home Depot. The claimant drove a flat bed tractor-trailer with a detachable forklift mounted on the back end of the trailer. The claimant testified that he made ten to twelve deliveries per day, and that each time he made a delivery, he had to climb up into the forklift, detach it from the trailer, make the delivery, reattach the forklift, and climb back down. The truck was loaded by other Home Depot employees. The claimant treated conservatively at the Norwich Orthopedic Group, where Daniel T. Glenney, M.D. diagnosed rotator cuff tendonitis and administered an injection. A voluntary agreement for this injury was approved on November 14, 2005. On May 18, 2006, Dr. Glenney determined that the claimant had reached maximum medical improvement and sustained a five-percent permanent partial disability to the left shoulder. Dr. Glenney stated that additional treatment options included antiinflammatory medication and repeat injections, and if such treatment failed to ameliorate the claimant's symptoms, he would recommend arthroscopic subacromial decompression. On or about the end of December 2005, Estes Express lost its contract with Home Depot and the claimant began driving a tractor trailer for Lowe's similar to the tractor trailer he had driven for Estes Express. The claimant testified that in addition to making deliveries, the employment at Lowe's required more preparatory work such as processing order paperwork; shrink wrapping the merchandise for delivery, and loading the truck. The claimant testified that the work he did for Estes was "significantly busier," Findings, ¶ 9, as he generally did three to four deliveries a day, or approximately fifteen to twenty a week, for Lowe's. At the request of the respondent Estes Express, the claimant was evaluated by Gerard Lawrence, M.D., on June 23, 2006. Dr. Lawrence noted that the claimant, despite having changed the way he loads and unloads delivery material, was continuing to have shoulder pain when he "abducts" and "externally rotates." Claimant's Exhibit B. Dr. Lawrence concluded that the claimant was suffering from chronic impingement syndrome which was not likely to improve on its own and would possibly require an arthroscopic decompression. Dr. Lawrence also concurred with the five percent permanent partial disability rating given by Dr. Glenney, and opined that "the claimant's left shoulder pain is causally related to his occupation and date of injury of April of 2005." Id. On September 12, 2007, the claimant returned to Dr. Glenney and said he was "fed up," Claimant's Exhibit A, with the pain in his left shoulder and wanted to undergo the surgery recommended by Dr. Glenney at a previous office visit on May 18, 2006. In correspondence to respondent...