Clements v. Aramark Corporation

The claimant was represented by Gary Huebner, Esq., Law Office of Gary Huebner, LLC, 164 Hempstead Street, New London, CT 06320.

The respondents were represented by Dominick C. Statile, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the August 4, 2015 Finding and Dismissal of Ernie R. Walker, Commissioner acting for the Second District, was heard on February 19, 2016 before a Compensation Review Board panel consisting of Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Stephen M. Morelli.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the August 4, 2015 Finding and Dismissal of Ernie R. Walker, Commissioner acting for the Second District. We find no error and accordingly affirm the decision of the trial commissioner.1

The trial commissioner made the following factual findings which are pertinent to our review. On September 19, 2012, the claimant was employed by the Aramark Corporation as a Mess Attendant, stationed at the Coast Guard Academy in New London, Connecticut, and her professional duties included serving food and beverages as well as cleaning up after the meals. The claimant, who would typically work three-hour shifts during breakfast and lunch, testified that on or about September 19, 2012, she followed her usual routine: she awoke at 4:45 a.m., showered, dressed, drank coffee, drove to work, and arrived at the Academy at approximately 5:40 a.m. She then parked her car in the lot and walked to the building, a distance which she estimated to be fifteen to twenty feet. The claimant testified that the path was short and did not have an up or down incline, and she did not trip or slip at any point. She stated that when the alleged incident occurred, she was not in any stage of physical exertion but, rather, was “[j]ust walking.” January 8, 2015 Transcript, p. 36. The claimant testified that she became dizzy and fainted, whereupon she fell to the ground, allegedly injuring herself. There were no witnesses.

The claimant was discovered lying on the ground by co-workers and taken to Lawrence and Memorial Hospital via ambulance. Hospital reports indicate that the claimant suffered from a syncopal episode and provided a diagnosis of ecchymosis as well as swelling. Neer Zeevi, M.D., treated the claimant upon admission and found that the claimant’s “syncope was likely cardiac in etiology.” Claimant’s Exhibit B (September 20, 2012 Consultation Report). A report authored by Brittney Burdick, PAC, states that “the etiology of her syncopal episode was initially unclear, but it appears to be cardiogenic in nature.”2 Id. (September 19, 2012 Personal History and Physical Exam Report of Brittney Burdick, PA-C and Monica Villegas, D.O.) A pacemaker was inserted during the claimant’s hospital stay.

While in the emergency room, the claimant suffered from cardiac arrest. John Nelson, M.D., a neurologist, reported the following:

The hospital records as well as the reports of the treating physicians reflect that the claimant had a history of cardiac disease, hypertension, hyperlipidemia, and an irregular heartbeat. The medical records also indicate that the claimant had a history of hypothyroidism, and Nelson’s discharge summary states that “[t]he patient reports that she did not have her Levothyroxine for several days prior to admission.” Id. Nelson’s discharge summary lists the following “Discharge Diagnoses”:

The hospital records state that the claimant has a family history of “coronary disease,” id., (September 19, 2012 Cardiology Consultation Report of Valerie Popkin, M.D.) and “support the position and opinion that the syncope events, [although] initially unclear, [were] cardiogenic in nature.” Findings, ¶ 22. In addition, the medical records state that the claimant had been prescribed Propanolol for an irregular heart rhythm. Id.

Mustapha Kemal, M.D., treated the claimant three times during the period from June 3, 2014 through September 6, 2014, almost two years after the claimant sustained her injury. In correspondence to claimant’s counsel dated November 17, 2014, Dr. Kemal noted that the claimant “did not have documented coronary artery disease, cardiomyopathy, valvular heart disease or congenital heart disease, which have been identified as common causes of cardiogenic syncope.” Claimant’s Exhibit J. Dr. Kemal opined the following:

On the basis of the evidence presented, the trier concluded that the claimant had suffered an episode of cardiogenic syncope with concussive head injury. The trier also noted that the claimant’s medical records indicated the claimant had been prescribed Propanolol for an irregular heart rhythm, and “Propanolol is used to treat, among other things, primarily hypertension, heart rhythm disorders and other heart circulatory conditions.” Conclusion, ¶ D.

The trial commissioner found that Dr. Kemal’s opinion, which was predicated on his diagnosis that the claimant had no “documented coronary artery disease, cardiogenic syncope, vascular heart disease, or congenital heart disease,” was “clearly erroneous based on the records presented.”3 Conclusion, ¶ E. As such, the trier deemed Dr. Kemal’s report neither credible nor persuasive. Rather, given that the opinion of Neer Zeevi, M.D., and “the compilation of hospital records support the position that the Claimant suffered from a cardiac syncope event,” Conclusion, ¶ G, the trier concluded that the claimant’s fall was due to cardiogenic syncope and dismissed the claim on the basis that the claimant’s injury did not arise out of her employment with the respondent employer.

The claimant filed a Motion to Correct and for Articulation, both of which were denied, and this appeal followed.4 On appeal, the claimant contends, inter alia, that the trial commissioner made unreasonable factual inferences by choosing to rely on “select emergency room reports,” Appellant’s Brief, p. 11, and by failing to discuss the cardiology reports in evidence for the period of September 19, 2012 through October 30, 2014. The claimant also asserts that the trial commissioner misapplied the law of proximate causation to the facts of the case, asserting that the injury should have been found compensable because:

We begin our analysis of this matter with a recitation of the well-settled standard of review we are obliged to apply to a trial commissioner’s findings and legal conclusions.

In the matter at bar, the claimant is, in essence, contending that the trier’s reliance upon the medical reports from the claimant’s hospital admission did not provide an adequate basis for his conclusion that the incident which led to the claimed head injury did not arise out of or in the course of the claimant’s employment. We disagree. As discussed previously herein, the medical reports in the record associated with the claimant’s treatment for the in-patient hospital stay from September 19, 2012 to September 23, 2012 consistently indicate that the claimant fell after experiencing a cardiogenic syncopal event and also reflect that she ultimately received a pace maker after going into cardiac arrest in the emergency room. In addition, apart from the opinion offered by Dr. Kemal, none of the subsequent medical reports in evidence challenge either the original diagnosis or the medical treatment the claimant received while she was in the hospital but, rather, document the claimant’s continuing difficulties with postconcussive syndrome.

Our review of the medical reports indicates that they document a history of hypothyroidism, hyperlipidemia, and hypertension along with cardiac syncope, migraines, and pace maker insertion. We decline to hold that it was error for the trier to include in his findings the information reflected in the medical reports. Moreover, although the claimant denied it at trial, the medical reports also indicate that she was initially prescribed Propranolol for an irregular heartbeat. It would appear that the trier did not credit this portion of the claimant’s testimony; given that a credibility determination is “uniquely and exclusively the province of the trial commissioner,” Smith v. Salamander Designs, Ltd, 5205 CRB107-3 (March 13, 2008), it is not subject to reversal on review.

We concede that the medical reports submitted into evidence do suggest that the doctors who initially evaluated the claimant were unable to arrive at a definitive diagnosis for what might have caused the syncopal episode. Nevertheless, it is not the responsibility of the trial commissioner to “second guess” the medical findings or attempt to render a medical diagnosis if the evidence presented suggests that the medical personnel who treated the claimant were unable to do so. The fact remains that regardless of whether the medical reports are 100% accurate or, more likely, contain minor errors and/or inconsistencies, there is nothing in the evidentiary record which could serve as a reasonable basis for inferring that the claimant’s initial syncopal event arose out of the employment. This is particularly so given that the claimant clearly testified that she had neither slipped nor tripped but, rather, passed out while “just walking.” January 8, 2015 Transcript, p. 35. It is axiomatic that the burden of proving whether a claimant sustained a compensable injury rests with the claimant. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). As such, “[i]f the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.” Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000), appeal dismissed, A.C. 21533 (2001).

The claimant also contends that the trial commissioner misapplied the law of proximate causation to the facts of this matter and thereby erred in concluding that the claimant’s concussive injury was not covered by the Workers’ Compensation Act. The claimant asserts that:

As discussed previously herein, the claimant has failed to persuade us that the trial commissioner erred in rejecting factors (1) and (2) as theories of liability. We are similarly unpersuaded by factor (3).

It is axiomatic that:

It is equally well-settled that “whether a sufficient causal connection exists between the employment and a subsequent injury is, in the last analysis, a question of fact for the commissioner.” Sapko v. State, 305 Conn. 360, 385 (2012). Thus, “[o]nly if no reasonable fact finder could have resolved the proximate cause issue as the commissioner resolved it will the commissioner’s decision be reversed by a reviewing court.” Id., 385-386.

As discussed previously herein, the claimant’s fall occurred while she was on the premises of the employer but before she had reached her work station or commenced her duties. At the outset, then, it can be argued that even though the claimant’s injury occurred “within the period of the employment” and the claimant was “at a place the employee may reasonably be,” the claimant must also prove that she was “reasonably fulfilling the duties of the employment or doing something incidental to it.” Daubert, supra. Moreover, even if the claimant were able to establish that the injury occurred in the course of her employment, she must also prove that it arose out of the employment. “Speaking generally, an injury ‘arises out of’ an employment when it occurs in the course of the employment and as a proximate cause of it. An injury which is a natural and necessary incident or consequence of the employment, though not foreseen or expected, arises out of it.” Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 309 (1916). It should also be noted that:

Sapko, supra, fn. 13, quoting Fiarenzo v. Richards & Co., 93 Conn. 581, 587 (1919).

In the matter at bar, the claimant contends that “[i]f the syncopal episode was an idiopathic event, a fall on cement was among the risks inherent in coming to work and is analogous to the factual scenario in Savage v. St. Aeden’s Church, 122 Conn. 343 (1937).” Appellant’s Brief, p. 25. We do not agree. While it is true that in Savage, the court held that “the fall was the immediate cause of the injury,” id., 347, and an “injury is compensable, not because of the extent or particular character of the hazard, but because it exists as one of the conditions of the employment,” id., 349, we also note, as the respondents point out, that the Savage court repeatedly mentions that compensability lies because the injury in question was caused by a “hazard” that existed as a condition of the employment. Given that the instant claimant sustained her injury while walking on a cement surface, this board’s remarks in Kielbowicz v. Tilcon Connecticut, Inc., 5855 CRB-6-13-6 (June 12, 2014) would seem to be equally pertinent here:

In a similar vein, we find no merit in the claimant’s assertion that “[t]he hard cement upon which Ms. Clements struck her head was a condition of the employment that essentially contributed to the head injury.” Appellant’s Brief, p. 26. The claimant attempts to liken the facts of the instant matter to those in Gonier v. Chase Companies, Inc., 97 Conn 46 (1921) wherein our Supreme Court affirmed an award of benefits to a claimant who fell from a scaffold after an attack of indigestion rendered him unconscious. The Gonier court recognized that “an accident does not cease to be such because its remote cause was the idiopathic condition of the injured man; we must disassociate that idiopathic condition from the other facts and remember that [the claimant] was obliged to run the risk by the very nature of his employment....” Id., 52. However, the Gonier court ultimately concluded that the claimant’s “employment brought him upon this scaffolding, from which, if he fell, he was in danger of serious injury. The danger of falling and the liability of resulting injury was a risk arising out of the conditions of [the claimant’s] employment.” Id., 54-55.

Again, given that the instant claimant sustained her injury merely while walking across some sort of cement surface, we do not find the court’s reasoning in Gonier applicable to the facts of the matter at bar. Moreover, had the trier concluded that the claimant was exposed to a higher risk than that encountered by any member of the public walking on that surface, such a finding would clearly be inapposite to our Supreme Court’s observation in Larke that “[t]he conditions of employment which expose the employee to an injury which arises out of the employment are such as are peculiar to this employment, and not such exposures as the ordinary person is subjected to.” Larke, supra, at 310.

The claimant also discusses the distinction between “personal risks” and “neutral risks” as set forth in 1A Larson & A. Larson, Workers’ Compensation Law (2006) § 4.03, pp. 4-2 through 4-3, and argues that “[t]he evidence is devoid of any clear or substantial personal risk that may have contributed to the development of syncope.” Appellant’s Brief, p. 28. Rather, the claimant contends that “[t]he claimant was exposed to the neutral risk of walking upon a hard cement floor, which essentially contributed to the severity of the head trauma.” Id. We are not so persuaded.

In Blakeslee v. Platt Bros. & Co., 279 Conn. 239 (2006), Justice Sullivan, in his dissent, observed that, “Larson describes risks that attach to a particular employee and that have no connection to the employment, such as an employee’s own idiopathic medical condition or animus between employees, as personal risks.” Id., 259. On the other hand, “Larson defines neutral risks as workplace conditions that arise neither from a specific employment activity nor from a characteristic personal to the employee.... Such risks include employee horseplay in which the injured employee has not participated or an attack by a fellow employee who has lapsed into insanity.” Id. As discussed previously herein, our review of the instant record indicates that the medical evidence provided a more than adequate basis for the trier’s conclusion that the claimant’s fall was “caused by Cardiogenic syncope.” Conclusion, ¶ L. It may therefore be construed that the claimant’s condition at the time of injury constituted a personal risk. Moreover, “[w]hen an injury’s initial causative factor is a personal risk, a stronger causal connection between the ultimate injury and the employment than mere presence at the place of work and exposure to general workplace conditions is required to establish compensability.” Blakeslee, supra, 259-260.

We recognize that Larson states that when an injury arises from a neutral risk, “all that is needed to tip the scales in the direction of the employment connection ... is the fact that the employment brought the employee to the place at the time he or she was injured – an extremely lightweight causal factor, but enough to tip scales that are otherwise perfectly evenly balanced.” Id., 259. However, Larson also remarks that “the employer assumes the risk of injury from dangerous conditions that may arise at the place of work and that are not personal to, caused by or within the control of the employee, even when, as in the horseplay cases, the workplace condition is not specifically employment-related.” (Emphasis added.) Id. As discussed previously herein, it may be reasonably inferred that the trier did not consider the surface upon which the claimant fell to be a “dangerous condition” of the employment, and there is nothing in the evidentiary record to persuade us that the trial commissioner should, or even could, have found otherwise.

There is no question that the claimant has been left with a significant disability as a result of the concussive injury which is the subject of this appeal. Nevertheless, the claimant provided the trial commissioner with no evidence which would substantiate the claim that her employment contributed in any fashion to the fall which led to the injury or that the injury would not have occurred had the claimant been somewhere else at the time. “The fact that injuries, whether from accident or disease, happen contemporaneously or coincidentally with the employment affords no basis for an award under our Act. Injuries of that nature which arise in the course of the employment, unless they also arise out of the employment, do not come within our Act.” Madore v. New Departure Mfg. Co. 104 Conn. 709, 714-715 (1926).

The claimant has also filed a Motion to Correct and for Articulation. Relative to the Motion to Correct, our review of the proposed corrections indicates that the claimant was primarily reiterating the arguments made at trial which ultimately proved unavailing. Moreover, we are not persuaded that the various amendments and findings sought by the claimant would have had any bearing on the ultimate conclusions drawn by the trial commissioner. As this board has previously observed, “[a] Motion to Correct ... may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings.” Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998), quoting Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (February 6, 1995).7

With regard to the Motion to Articulation, generally speaking,

(Internal quotation marks omitted.) Breen v. Craig, 124 Conn. App. 147, 161 (2010). In the matter at bar, the claimant objects to the language used in Findings, ¶ 23, wherein the trier stated that “Dr. Mustapha Kemal treated the Claimant three times over the period from June 3, 2014 through September 6, 2014, nearly TWO YEARS after the injury.” (Emphasis in the original.) The claimant, noting that the trial commissioner “appears to attach significant weight to the timing of Dr. Kemal’s report,” September 15, 2015 Motion to Correct and for Articulation, p. 4, has requested an articulation of the trier’s “reasoning in deciding the weight to be afforded on the basis of when Dr. Kemal issued his report.” Id. In effect, the claimant is asking the trial commissioner to explain the process by which he weighed the evidence presented in this matter, a function which is well within the trier’s sole discretion. As such, we find no error in the trier’s refusal to grant the Motion for Articulation. “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony.... The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted.) Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).

There is no error; the August 4, 2015 Finding and Dismissal of Ernie R. Walker, Commissioner acting for the Second District, is accordingly affirmed.

Commissioners Nancy E. Salerno and Stephen M. Morelli concur in this opinion.

1 We note that two Motions for Extension of Time were granted during the pendency of this appeal. BACK TO TEXT

2 The trial commissioner found that “[c]ardiogenic syncope is caused by a drop in blood pressure followed by bradycardia (heart beats too slow) the slower rate resulting in poor oxygen flow to the brain which results in temporary loss of consciousness due to underlying heart problems.” Findings, ¶ 26. BACK TO TEXT

3 We address the trier’s misquoting of Dr. Kemal’s report in footnote 7, infra. BACK TO TEXT

4 On October 22, 2015, the respondents filed an Objection to the Claimant’s Petition for Review and Cross Motion to Dismiss. On November 27, 2015 the respondents filed an Emergency Motion for Judgment relative to the Objection and Cross-Motion to Dismiss. The Emergency Motion for Judgment was denied by Chairman John A. Mastropietro on December 8, 2015. On February 19, 2016, the date of oral argument, the claimant filed an Objection to Motion to Dismiss. BACK TO TEXT

5 The respondents point out that there is a factual discrepancy as to whether the claimant fell inside or outside of the building. The New London Fire Department emergency report states that the claimant was found “lying on the ground,” Claimant’s Exhibit A, and the claimant testified that she “went through the door to go out to get into the next building, and I landed on the ash fault [sic].” January 8, 2015 Transcript, p. 21. The trial commissioner found that the claimant “fell to the ground,” Findings, ¶ 12, and she “was discovered on the ground by co workers....” Findings, ¶ 13. The trial commissioner did not find that she had re-entered a building when she collapsed. BACK TO TEXT

6 We note that in Kulis v. Moll, 172 Conn. 104 (1976), the Supreme Court upheld the trial commissioner’s denial of benefits to a worker who was found lying on the ground at the foot of a ladder, remarking that “there was no evidence to indicate whether the plaintiff, when found on the ground, had suffered a sudden illness, an accidental fall or even an external assault before his employer, the defendant, responding to his humane instincts, drove the plaintiff to the hospital.” Id., 111-112. As this board observed in Kielbowicz v. Tilcon Connecticut, Inc., 5855 CRB-6-13-6 (June 12, 2014), “[t]he decision in Kulis does not cite Savage, [and] reached an entirely different outcome, and we are puzzled as to how the two decisions are reconcilable.” ”Keilbowicz”, supra, fn. 2. BACK TO TEXT

7 While we concede that in Conclusion, ¶ E of the August 4, 2015 Finding and Dismissal, the trial commissioner did misquote the claimant’s medical history as recited in the November 17, 2014 report of Mustapha Kemal, M.D., we note that the history was recited correctly in Findings, ¶ 24. Given that we are not convinced that Dr. Kemal’s summation of the claimant’s medical history significantly affected the weight accorded to this opinion by the trier, we deem this harmless scrivener’s error. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT