5406 CRB-4-08-12 (2009). Kummer v. BIC Corporation.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5406 CRB-4-08-12 (2009). Kummer v. BIC Corporation CASE NO. 5406 CRB-4-08-12COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSION DECEMBER 15, 2009NANCY KUMMER CLAIMANT-APPELLANT v. BIC CORPORATION EMPLOYER and LIBERTY MUTUAL INSURANCE COMPANY INSURER RESPONDENTS-APPELLEESAPPEARANCES: The claimant appeared pro se. The respondents were represented by Joseph J. Passaretti, Jr., Esq., Montstream and May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087. This Petition for Review from the November 25, 2008 Finding and Dismissal of the Commissioner acting for the Fourth 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.OPINIONJOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 25, 2008 Finding and Dismissal of the Commissioner acting for the Fourth District. We find no error, and accordingly affirm the decision of the trial commissioner.The following factual background is pertinent to our review. The claimant alleges she sustained a compensable back injury on June 27, 1997 while in the employ of the respondent employer as a mold helper, which position entailed providing materials to the machine operators. The claimant testified that on the date of injury, she was pulling a wagon filled with cartridges that weighed more than 600 pounds when the wagon got caught on a "paddy-pal." The claimant tried to pull the wagon free, and felt her back "go out." Findings, ¶ 3. The claimant testified that she informed the union steward of the incident but was unable to inform the company nurse because she had already left for the day. The claimant stated that because her coworkers' vacation schedules overlapped with her own, she was unable to inform the company nurse about the injury until sometime in September 1997. A daily medical log maintained by the respondent employer indicated the claimant first reported low back pain on August 29, 1997 but did not attribute it to a specific injury or incident. A second medical log entry dated September 22, 1997 indicated the claimant reported both low back and left hand pain at that time but only provided a history of how the pain in the hand occurred. At trial, the claimant confirmed the medical log entries were accurate. A First Report of Injury was filed on February 2, 1998 and the claimant filed an Accident/Incident Investigation report on February 13, 1998. The claimant submitted into evidence a report dated September 23, 1998 from S.J. Hochman, D.C., a chiropractor, who indicated he had been treating the claimant for lumbar complaints during the time period between August 18, 1997 and September 23, 1998. Claimant's Exhibit A. In this report, Dr. Hochman opined, "there is a direct causal relationship between the work related accident of June 27, 1997 and Ms. Kummer's subsequent injuries and impairment." Id. Dr. Hochman assigned the claimant a seven-percent disability rating to her lumbar spine. The claimant also treated with Cynthia Relihan, M.D., for complaints associated with the left upper extremity. In her report of September 25, 1997, Dr. Relihan stated the claimant's past medical history was "unremarkable." Respondents' Exhibit 4. On December 9, 1997, the claimant saw B.L. Sprague, M.D., for treatment of her right hand. In this report, in the section entitled "medical problems," Dr. Sprague reported "none." Respondents' Exhibit 3. At the request of the respondents, on July 20, 1998, the claimant underwent a Respondents' Medical Examination with James V. Lettera, M.D., for an evaluation of her left hand. In his report of that date, Dr. Lettera indicated the claimant's "previous history is unremarkable other than for smoking." Respondents' Exhibit 2. On December 16, 2003, the claimant consulted Scott Waller, M.D., for a lumbar complaint. At that time, Dr. Waller opined the claimant's symptoms could be attributed to "a combination of left side sacroiliitis as well as being due to lumbosacral degenerative arthritis with an associated grade I spondylolisthesis of L4 on L5 and with possible left sided nerve root encroachment." Respondents' Exhibit 1. On March 23, 2004, Dr. Waller reported "[t]he patient's lower back and left lower extremity symptoms have almost completely resolved with conservative management." Id. Dr. Waller discharged the claimant from his care and did not assign an impairment rating. On the basis of the foregoing, the trial commissioner dismissed the claimant's lumbar spine claim, concluding that the claimant, whom he did not find credible or persuasive, had failed to sustain her burden of proof. The trial commissioner also indicated he found the medical opinions of Drs. Waller, Lettera, Relihan and Sprague credible and persuasive. On December 15, 2008, the claimant filed a Motion to Correct the Finding and Dismissal indicating it was her understanding that the issue for discussion at the formal hearing was supposed to have been her low back claim and because the respondents had filed exhibits pertaining to her claim for an injury to her left hand, she was seeking corrections to Findings ¶¶10, 11 and 12. Along with this Motion to Correct, the claimant also filed a timely Petition for Review and additional correspondence indicating she was appealing the trial decision "on the fact that we were on the wrong body part and Claim #112 [sic] is the low Back Claim only." On December 23, 2008, the trial commissioner issued a ruling on the claimant's Motion to Correct in which he denied the proposed corrections but...