Wendell Bond V. Lee Manufacturing INC

The issue in contest is the denial of the claimant’s request to reopen a stipulation, which encompassed a number of separate injuries. The claimant explained that he did not have the capacity (partially due to medications he was taking) to attend his settlement on April 13 th , 2012. Additionally, the claimant argued that the three grounds to reopen a stipulation under 31-315 were applicable. Commissioner Vargas found that, not only was the evidence supporting his absence insufficient, but the grounds on which to reopen were inapplicable. Upon the finding and dismissal, the claimant filed a petition for review. However, this motion was not filed within the allotted 20 day period after the commissioner’s decision, making the jurisdiction of the tribunal in question, inadequate. Even if the claimant had filed in a timely fashion, a petition to review cannot be enlisted as a method to contest factual findings, previously found. The precedent in Macon v. Colt’s Manufacturing is dispositive of these issues. This emphasizes the difficulty to reopen a stipulation or a voluntary agreement once its been entered into.

-Caelan Kerin

Nilda Rivera V. Patient Care of Connecticut Employment

The claimant, Nilda Rivera, is a CNA who was a personal care assistant for a disabled person. The claimant fell down a flight of stairs, injuring her right foot, while in the home of a patient. Nevertheless, some questionability is held in two other injuries that were unearthed after the accident. The claimant first explained pain in her left foot as a direct causal effect of the injury she sustained in her right foot, which, was disputed by the RME, Dr.Sella. Upon this finding, the claimant proceeded to seek treatment for pain in her right shoulder (which turned out to be a torn rotator cuff) which was also found to be unrelated to her initial lower right extremity injury by several RME’s. When questioned during two separate hearings, the claimant gave two separate causes of her right shoulder injury, creating a morass of ambiguity unsurpassable by Commissioner Dilzer. After the denial of her Motion to Correct, the claimant appealed on three grounds, all of which were denied. The fact that the claimant had already reached MMI (maximum medical improvement) in her right lower extremity dictated against a finding of compensability.

-Caelan Kerin

Really Dad ? Driving Lessons

Michael

Every March 2nd I wake up my daughter singing “Happy Birthday.” I also sing to her on March 3rd, the 4th, the 5th, and so on for the next 60 days until it is actually her birthday, on May 2nd. If a friend of hers happens to be staying over during this two month period, there is always a moment of embarrassed confusion that Mickey has to clear up by explaining that it’s not really her birthday; it’s just a weird daddy thing. She probably chalks it up to another reason the Department of Children and Families should pay a visit to our home. But mostly she seems content to smile and play along, enjoying the attention of her extended birthday.

Since this year will be her sweet 16th, there has been an exuberant push to claim the rights and privileges attendant with her coming of age: yes, I mean driving. Because we spend a lot of time up in our cabin in Vermont, both our kids have been lucky enough to hone their driving skills on the lonely dirt roads of Windham where you are more likely to encounter a moose or bear than another vehicle. We had to curtail Michaela’s driving in Vermont for a time after a misadventure one fine February morning when she slid into a snowbank at the edge of the driveway, having been momentarily mesmerized by her own reflection in the rearview mirror. It took a good hour of digging and putting evergreen branches under the tires to finally extricate ourselves from the mound of snow, and with each passing moment of that spectacular morning that we were not carving turns on the mountain, I became a little more perturbed with Michaela. I started to lecture her about keeping her eyes on the road, when Lisa interrupted me to remind me that our daughter was only 10 years old, so I should probably go easy on her.

Now her mantra is for driving lessons whenever we get into the car. I want her to get as much experience under her belt as possible, under all sorts of conditions, before that day when I hand over the keys and she will disappear down the driveway without looking back. We practice driving up at the old airport which is private property, so is not technically against the law. She drives along the dirt tracks that parallel the rings where she has had horse competitions. I wonder how I could have been so nervous when she was in charge of just one horse, when now, she has to control several hundred horses revving under the hood. She practices parking in the lot adjacent to the firehouse, opening her door each time to see how close she came to the white line.

On a quiet Sunday, after we have driven down a deserted cul de sac, completing three point turns, backing into parking spaces, and pulling forward between the two white lines, I drive home. Mickey asks to park the car in the driveway. She pulls up to the garden circumscribed by a border of football-signed rocks. This would have been the end of an uneventful driving lesion, except she lurches forward crunching one of the small boulders against the undercarriage of the car. Michaela is all apologies. I can feel involuntary fasciculation’s rippling across my face as my daddy demeanor is losing an argument to the guy who pays the bills. Or as Michaela likes to say, the “bulldog” look was creeping across my face. “Are you kidding me, Mick?” I ask, the irritation leaking into my voice, her eyebrows furrowing. “But Dad, I didn’t mean to,” her bottom lip quivering, her eyes welling with tears.

I know what’s coming next if I don’t turn this around quickly. I invoke the wisdom of my grandmother, telling her: “Don’t cry over what money can buy,” a phrase I will try to remember a month later when my son totals the same car, but is not injured. Mickey puts the car in reverse, and I pretend not to hear the rending screech of the car being pried off the rock. I will wait till later to run my fingers along the gouge under the bumper. Mickey has her swag back as she rolls down the road again. The waterworks have been averted.

On another lesson, Michaela navigates down a mile-long descent, gathering speed as she goes. I see two things coming up fast—an oncoming dump truck and a garbage bin that the wind has blown about three feet into her lane. My right leg starts twitching as I hunt for a brake pedal that does not exist. “Slow down,” I caution, as I pucker-up the fabric from the seat beneath me. She follows my instruction to a tee, slowing the SUV but holding her line straight into the plastic can which goes flying into the yard from whence it came. On a brighter note, the dump truck speeds by without incident.

Note to myself: perhaps she needs a bit more practice before unleashing her on the highways. Another six years ought to do it. About the same time I tell the orthodontist to take off her braces.

Michaela

No matter what my father claims, my first accident (in a car) was not last year. In fact it was at least six years ago. I was young and small enough that my legs were too short to reach the controls of a vehicle, never mind a Durango truck. My parents had the brilliant idea to allow their child to drive down a snowy, slippery driveway. Of course as one could easily guess, I had not yet mastered my steering skills at age ten, so the two right tires may have drifted slightly off the road into a ditch that was impossible to get out of. But whose fault is that: the innocent little girl who was sitting on her dad’s lap driving; or the irresponsible father who allowed the little girl to drive? Really Dad? Anyway, I have not lived that one down, regardless of the fact that my little mishap has been eclipsed by another, shall we say, reckless driver in the family. *Cough cough* my brother *cough*.

As of right now, my sixteenth birthday is in two days, and if all goes well, I will get my learners’ permit in three days. So recently each of my parents has been individually giving me driving lessons. The first two lessons with my dad did not go so well. I will set the scene for you: Nervous Michaela is worried about driving and redeeming herself in her father’s eyes. We have just finished a nice drive on a dead end street. My dad drove home, and I asked to park the car when we are back in the driveway. My dad stops the car on a dead-end street. I get my seatbelt on, start the car, adjust the mirrors and the seat. I put the car in drive to pull around a small rock wall surrounding the garden in my driveway, we are cruisin’; and then bang. Well technically it wasn’t a bang, more of a high pitched “eeee” but in my dad’s ears it sounded more like the chi-ching of a cash register, back in the days of black and white movies. The bottom of the pristine driver’s side door was a wee bit too close to the rocks and apparently it came in contact with one of them. Woopsies. Even though the Audi A4 now lives at Nino’s Garage, unable to be driven, and NOT because of yours truly, I still reap the consequences of that tiny accident. In the bigger picture, that was just a chip in the fingernail polish. By the time my brother wrecked the rig, there was no finger left, never mind the nail to paint.

Now on to the second driving lesson. This time, we made it out of the driveway and down the hill without any issues, so I was feeling good. My dad is an easy person to drive with in comparison to my mother, who is like an air traffic controller, streaming live, warning me about even the most remote possibility of contact with another vehicle, pedestrian, or in Bethany, horses. My dad is much calmer, tending to point out dangers only when they are imminent, which is usually the style better suited to me. However, I do get anxious when I am driving down a hill, coming around a turn in a rather large vehicle, headed straight for a garbage can placed smack in the middle of my lane, while at the same time a truck is accelerating up the hill and around the turn in the opposite lane and the only instruction I receive is “Slow down.” Naturally, I chose the lane with the garbage can and not the one with the speeding vehicle, and perhaps the Durango may have grazed the rubber container. My dad yelled and then laughed at my mistake; the laughing hurt far worse than the yelling. Maybe if he had been a little more animated about the obstacles ahead, I could have avoided them altogether. Thank you though pops, so funny.

Although some of these lessons did not go perfectly, others did. They served not only as driving lessons but life lessons, time for my dad and me to talk about anything going on in our lives, even things that may have seemed stupid at the time. It’s like that country song about a father and a daughter who go fishing together, “She Thinks We’re Just Fishing.” I know we’re not just driving. I am grateful not only for the mistakes I can make when my dad is in the car, but for the memories that come out of them. And even though in a few months, I will be driving on my own, I might have to get a checkup on my skills every once in a while, dad. Because you know, your advice is always fire, as the kids say these days.

Really Dad? Drives to School

Posted on Amity Observer Jan 12, 2016
http://www.amityobserver.com/14476/really-dad-drives-to-school/

Michael Kerin and his teenage daughter Michaela of Bethany are co-contributors to the column, “Really Dad?” in which they explore the world through the eyes of their respective generation.

Michael

Black Converse kicks are propped on the dashboard of the TT, with the “Sound of Sunshine” pouring through the speakers. Michaela’s head rocks from side to side as she screams the lyrics: “And that’s the sound of sunshine pouring down, down down, down…” I turn down the radio to try to find out which bus she is taking home, and what she is going to be doing after school since I am flying solo this week while my wife, Lisa, is visiting with “her Mom and them” down on the Redneck Riviera.

She cranks up the lyrics and then mumbles something that I cannot decipher above the cacophony blaring from the Bose. I turn to ask her what she just said in time to see a swish of a camisole being pulled over her head.

“Dad, I said don’t look!” This time the instruction registers clearly in my eardrums that have been dulled by years of unprotected target practice decades ago. How was I supposed to know she had changed my car into an impromptu dressing room? The song keeps banging on.

“So I jump back in there where I learned to swim, Try to keep my head above it the best I can…”

I ask my daughter what was up with her sudden wardrobe change. She tells me that her blouse was too transparent, so she had to add a layer. Immediately, I wonder how I could have missed something so apparent after spending the last half an hour with her at home. But in the blur of getting breakfast ready, feeding the dogs, trying to address a few Christmas cards and organize some workout clothes, I had missed the obvious. The truth is she could have gotten into the car with her hair on fire, and I would have thought the car ahead of me was burning some oil. That would never have occurred on Lisa’s watch: she would have had Michaela hotfooting it back up to her room before she reached the bottom step of the stairway.

I muse about what a lousy father I am as we begin lurching across the speed bumps in the high school driveway, seeing the sleepy upper classmen stagger out of their cars and amble toward the front door. This time next year Mickey will be one of them, driving herself to and from school. I am reminded of a friend’s somber observation recently that he “lost” his daughter the day she got her license. How do the years unspool so quickly? Wasn’t it just five minutes ago that her feet dangled from her car seat as she gave me a good luck kissing hand before skipping into her elementary school?

I resolve to find out the particulars of her plans for the weekend as I turn down the radio again. Getting answers to the five W’s is the essence of good parenting after all. “So Mickey…” I manage to say before she jams up the volume.. She is smiling, rollicking in the beat that will not be denied. She knows just how far she can push me, and I am right at the brink.

“Here I am…Just waiting for this storm to pass me by…”

We pull up to the curb, and I am still clueless about her plans. She nudges me to join her in the chorus. We belt it out, as she gathers her book bag and candles she’s giving to her teachers. I realize with an odd mixture of sadness and pride that she had not needed me or her mother to tell her how to dress this morning. She handled it quite nicely herself. Now she’s almost out the door, and still, I do not know the plan. She clicks open her door, starts out, then turns back to grab my hand and deposit a kiss in it. “I’ll text you later about the plans…” Then she’s gone.

I idle down the driveway listening to the sound of sunshine coming down.

Michaela

A morning in the Kerin household is more hectic than any mall on Black Friday. When I wake up, I go down and take T-Bone and Chai out and make sure they are both fed and watered. On the way back upstairs, I turn on and/or refill the Keurig so we can all make coffee. My mom usually cooks breakfast which I know is done when the smoke alarm goes off. Then have to choose a tie to match Dad’s suit, shoes and a scarf to match mom’s outfit, and eventually, I get myself ready. The bell which initiates class dings at exactly 7:32 every morning. My first period class on most days is AP United States History, one of my most challenging. And my parents wonder why I am always late getting in the car.

For most people, the ride to school is a short period of peace and quiet to gather themselves: for me, it is no less hectic than the rest of the morning. While mom uses one eye and hand to drive and the other eye and hand to put on mascara, I rip the knots out of my hair with a brush until I can glide it through my luscious locks without making me wince. Then I plug the AUX cord into my phone and the jam sesh begins. My mom is beginning to gain an appreciation for my taste in music, which my dad continues to deem “nonsense.” Really Dad? My goal is to turn the music up loud enough that my mom can’t hear herself thinking of questions to ask about the day. My mouth and brain have a disconnect until at least 9 a.m.; I cannot yet handle the interrogation. Usually, the scheme works and the only words escaping through the beat are the lyrics to my favorite songs by Wiz Khalifa, J Cole, Kanye West, and all of the other rappers my dad does not approve of. On rare occasion, my dad is the one to take me to school, an experience my brothers dreaded when they were my age.

In elementary school, the drop off area was a large loop which parents would follow until they reached the school greeter and then they would follow the circle the rest of the way around and out of the parking lot. However, it seems my dad had witnessed a few too many of my horse shows because he would prance through the circle a few extra times, completing victory laps, beeping here and there so everyone knew who was arriving. The woman who ushered the children out of their cars began to cover her ears when she saw my father’s TT roll up. Then came middle school, and a different drop off scene. Here, the cars would pull in and follow a straight line from one side of the parking lot to the opposite end, and out onto the road. I honestly do not know if this was on purpose or just to humiliate me, but my dad would go the wrong way nine out of ten times and proceed to beep for the entire length of the road. Thanks for that one by the way, I got laughed at by the security guard almost daily.

And most recently, high school rides with dad. Where to begin? For part of my freshman year, I rode to school with both Caelan and Andrew. In just a few rides, my dad horrified all three of us in haunting ways, mostly targeting the boys. I’ll share a few instances. Usually, my brothers stormed out of the car while the wheels were still turning because they couldn’t get out fast enough. They would then whip their backpacks onto their shoulders (although I’m surprised they fit over their bulging egos) and swagger toward the side door. On one occasion when my dad didn’t scream something along the lines of “Don’t forget you have ballet practice tonight boys!” he did something worse. This time, the boys couldn’t pretend they didn’t know the crazy man in the sports car: they were trapped. My dad not only tied their backpacks together in the trunk, he tied them to the trunk. So when it came time, the boys hopped out of the car with their “cool dude tudes” as my dad calls them, and went to grab their backpacks but obviously couldn’t get them. I don’t know who was more embarrassed, my brothers for looking like goons, or me, waiting for them, revealing not only that I was related to the goons, but also, I was related to the crazy dude in the TT.

This year, with Caelan and Andrew gone, I am the new target. However, at this point, there is not much that my dad can do to embarrass me, I have seen it all. Riding with my dad is like riding with my mom, except when I blast the music it’s to drown out my dad when he screams out the window: “Michaela Kerin, is that the boy that you told me you want to go to prom with?” and other horrifying slurs. Suffice it to say, if mom isn’t available, I would rather ride the filthy bus than my other option.

Really Dad? The last goodbye

Kerin

My heart refused to do the math: four minus one is three. For months I had tried to brace myself for the moment at the end of the summer when I would have to accept this simple computation, but it turns out there are some things in life for which you cannot prepare. On August 27th our family of four effectively became a family of three when we delivered my son to the college he will call home for the next four years.

How did this day arrive so quickly? Wasn’t it just yesterday that we dropped off my little boy at the pre-school and waved at him through the window as he sobbed in his teacher’s arms? Could it really be time to entrust him to this institution of higher learning for the next four years? Had we imparted the last bit of wisdom that we parents had to offer?

Ready or not, we drove the two hours north, unpacked our truck and stowed his belongings in his dormitory. We met his two roommates and their parents, rented his books, had lunch in his cafeteria, and then attended a welcoming mass for the incoming freshmen and their families. The homily was given by the President of the school who foretold that just as St. Augustine encountered mighty challenges in his search for faith and meaning in his life, so too would our sons and daughters necessarily struggle in the next four years on their quest to shape their future. He suggested that like St. Augustine, our children would don and discard ideas like trendy clothes, and that like St. Augustine’s mother, Monica, who watched her son flounder, but never stopped praying for him to find his path, we parents must let go while praying that he or she will find his way. We found some solace in St. Augustine’s discovery that the heart is restless until it rests in the Lord.

And so we left the gym and walked our son out onto the quad where he was supposed to find his break-out group for orientation amidst the hundreds of freshmen milling about the sun-drenched lawn. This was the end of the line, the last goodbye. My son hugged me more tightly than he has in a long time, as he did his mother and sister. Lisa and Michaela dabbed at their eyes, squinting in the sunlight. I watched him slip away into the sea of wandering freshmen, trying to find their place in their new world. Suddenly Lisa realized we had not gotten one last picture together and was frantic to get one. I quietly told her he was gone, took her hand and Michaela’s and walked back to his dorm where we assembled the fan we’d bought in the bookstore, and each of us wrote a note for him to find in his room.

Of course we got stuck in rush hour traffic, just at the moment we needed to put some space between us and his college, the delay only exacerbating the agony we each felt in our own way. We finally limped onto I 95 to head back to Connecticut. Somewhere just past Warwick my eyes fogged up as I allowed myself to replay snippets of our life together: spiking our hair after a bathroom break at a restaurant; teaching him to ride his bicycle in our front yard, watching him fall again and again on the soft lawn; riding cross-country with him when he turned 16; watching him throw fastballs from the mound; skiing the steeps in Vermont; free diving behind Block Island.

We had planned to stop in Mystic for dinner on the way home, but none of us had much of an appetite. Instead, I called my mother, who reproved me for being so glum on such a “glorious” day. She reminded me of a day many years ago when one of her sons drove himself and the family dog to college, honking his horn all the way out of the neighborhood, a cigar clenched confidently between his teeth, as he stormed headlong into his own destiny. Yes, I remembered the day well, and it made me smile.

Michaela

When I opened my eyes after hugging him tightly one final time, I watched as he walked for a few steps until quickly disappearing into the school of nervous minnows, flopping awkwardly all around. It wasn’t until that instant that I realized that this was really goodbye. Similarly to the way you watch the world below you slowly shrink into a tiny speck when taking off on an airplane, I couldn’t tear my eyes away from this. My brother was entering his new home and beginning his new life. He was taking his first steps into adulthood. Our lives would never be the same.

Rewind a few hours: Move-In Day. My family woke up early and got ready for the big day. On the ride to Providence, my mom was driving and remained fairly quiet: my dad was full of nervous chatter and cheesy jokes. (Really Dad?) At first, I didn’t know what was going on with him, until I realized that he was saying anything he could, to keep from thinking about where we were going.

When we arrived at Providence, there were friendly guards who led us (in our car) through several checkpoints to my brother’s assigned dorm. Eventually, we pulled into a parking lot outside of a four-story brick building. Instantly, some cheery students in yellow shirts buzzed over to welcome us and help to unload. Caelan’s room number was written on a piece of paper and taped to his flat screen television, the biggest item that he had brought. Typical. When we walked into the building, it was as if we were entering another universe. Many words came to mind, some of which were: intimidating, bland, packed, tense. However, one word didn’t appear in my thoughts. Home. Granted when peeking into the open doors of the rooms full of excited new adults and nervous parents, I saw multiple miniature fridges, bean bags, fuzzy blankets, even a multi-colored furry rug (courtesy of Caelan), but there was no character. There was no stain on the floor from when T-Bone was a puppy. There was no missing shingle from the time when a lacrosse ball was thrown too hard in front of the garage. No initials were carved in the headboard of the bed with a pocket-knife from fifth grade. And no matter how many faux fur rugs there were, there were no dogs to cover them with the real deal. I could not picture my brother in his bed, his head on his pillow, feeling comfortable and cozy, and falling asleep in this place.

Later that day, there was an optional mass for all of the incoming students. After my family found our seats, I began to watch the other families shuffle in. With every new face I saw, I wondered which ones would eventually be comforting to Caelan. I wondered which face would replace mine for this chapter of his life. By the end of the night, when we all was said and done and I was back at home, the only face I was thinking about, was his. I went up to my room and sat on my bed with an old Christmas picture of Caelan and me from 2002 and I cried, hard, for a long time. Not necessarily because I was sad, but more because I am selfish. I didn’t want to share my brother with the rest of the world. I liked watching over him and knowing the people he spent time with. I cried because I realized that I no longer had to hide my after school-snacks in fear of him scarfing them down. I realized that if I wanted to hear the piano, I would have to learn a few songs. It also occurred to me that in the evenings now, when I am brushing my teeth and washing my face in the bathroom, there will be no one sitting in the bathtub, with the curtains closed, to talk to. I cried because there will be no more rowdy boys to push me around and annoy my friends when they come over. I would no longer see Rucks (Luke), Potesy (Joey), Shartsy (Nick Schnartz) or even Andy, my brother from another mother. I cried because I realized, that if life goes according to plan, my family will never again live under the same roof.

Recently, I saw a home video that was made on the day I was born. I was in my mom’s arms in the hospital bed when Caelan, my almost three year old brother, saw me for the first time. Since that moment, I have had a best friend. We’ve screamed at each other and hit each other, we’ve been unimaginably angry at each other. But in these 15 years, we have created a bond that will never be broken. Caelan has been my role model, my brother, and the best friend a girl could ever ask for, for 15 years. Whether he is downstairs playing piano until I fall asleep, or in his dorm at Providence, he will be there for me. He will protect and help to guide me, from a distance. It is scary saying goodbye, but this is his chance to fly. We have to step out of the way and let him spread his wings. Good luck brother. We love you.

Doreen Camp v. Lupin Pharmaceuticals, Inc., Co. 5936 CRB-6-14-5

Summarized by Frank Kachmar; Legal Intern

While traveling between two meetings for Lupin Pharmaceuticals, Inc., on January 5, 2010, the claimant was injured when snow fell off the roof of a fast food restauraunt, and fell down onto her head, back and neck with a strong force.

The trial commissioner dismissed these claims after finding several inconsistencies with the claimant’s narrative, namely that the claimant had sustained serious prior injury to her cervical spine region.

During the claimant’s testimony of the 2004 car accident, the claimant testified that she sustained injuries to her right hip, back, neck, and one of her shoulders, which prompted a cervical fusion in 2007 and a subsequent need for physical therapy. After the claimant’s work injury, the claimant underwent a corrective surgery in August of 2011, but the surgery performed by Dr. Aferzon only made things worse.

When the commissioner reviewed the video which showed the referenced incident at the McDonald’s drive-thru lane, she stated that, “This video showed a minimal amount of snow falling from the roof onto the claimant’s vehicle.” Upon review of the video, the commissioner dismissed the medical testimony by Dr. Karnasiewicz, in which she noted that his opinion was, “reliant on the accuracy of the narrative of the mechanism of injury.”

After review of these facts, and the evidence presented, the trial commissioner concluded that, “the claimant sustained significant injuries from her 2004 motor vehicle accident and while she testified she had recovered from those injuries by 2008 she continued to treat for those injuries until the January 2010 incident.” Therefore, the trial commissionerconcluded that, ‘the claimant’s testimony as to recovering from a prior injury was not credible.” As a result, the commissioner also dismissed the claim that the claimant’s hip injury was a result of withdrawal from pain medications. The trial commissioner found the medical testimony by Dr. Becker credible, which stated that it was unlikely that the claimant’s injuries were a result of pain medication withdrawals, prescribed to treat symptoms caused by snow falling on her. The commissioner did not find any other medical testimony to be credible as it was based on an erroneous narrative.

The claimant continued to argue that she was not granted due process, and that she suffered a compensable injury on January 5, 2010. However, upon review of the proceedings the CRB concluded that, “the claimant never sought any ruling from the trial commissioner on the issue of preclusion, and indeed, was put on notice at the formal hearing that the respondents were contesting compensability.”  The initial Form 43 was received by the Commission on April 5, 2010, and at that time the claimant had yet to fill a Form 30C initiating the claim. Thus, this was a, “pre-emptive disclaimer” similar to the disclaimers that the CRB deemed effective in Negron v. CVS Caremark Corporation, 5870 CRB-4-13-8 (July 17, 2014), appeal pending, AC 37062. The claimant wrongly believed that the disclaimer, “amounted to an admission of compensability”, but the CRB believes it was, “incumbent upon her to raise this issue with the trial commissioner at the point when it became evident the respondents were contesting compensability.” The claimant sought preclusion, yet she filed no Motion to Preclude. In response to this argument, the CRB cited Haines v. Turbine Technologies, Inc., 5932 CRB-6-14-4 (March 9, 2015) which stated, “It is black letter law that a party may not raise an issue on appeal to the CRB that was not adjudicated by the trial commissioner.” Upon review of the transcript of the initial trial commission, the claimant failed to object to her attorney at the formal hearing to the statement’s presented by her counsel. Therefore citing precedence in Paige v. Hartford Insurance Co., 4954 CRB-2-02-12 (January 9, 2004), suggests that, “there has been no error, as it is the claimant’s prerogative to raise an objection to her counsel.”

Jose Ricardo Lopez v. Louis Pannone, Indiv. Co. 5933 CRB-7-14-5

Summarized by Frank Kachmar; Legal Intern

The appeal as filed by the respondent, “focused on a single question: does the statutory exemption in Chapter 568 for part-time household employees (31-275(9)(B)(iv) C.G.S.) cover workers on residential real property that the respondent uses as rental property and does not use as their residence?” The trial commissioner concluded that the statute did not apply, when, “the claimant was injured while repairing a house that the respondent did not occupy and subsequently used as a rental property” The respondent appealed, while arguing that the statute in question makes the injury noncompensable. In affirming the trial commissioner, the CRB rejected the respondent’s interpretation of that statute, as they deemed it, “inconsistent with the plain meaning of the statute and would lead to absurd or unworkable results.” (1-2z C.G.S)

On June 8, 2010, the claimant arrived at a vacant residential property at50 Middlebury Street, Stamford, CT via bus after picking up his tools at the respondent’s garage. Upon arrival, the respondent, an individual whom the claimant worked for previously at an Old Greenwich pizzeria, and frequently as a “casual employee” on various rental properties, directed the claimant to wash the rear of the house. While washing the rear of the house, the claimant fell off a ladder and sustained significant injuries to his neck and back. After the fall, the respondent’s brother transported him to the hospital in his personal automobile and let him stay at his home for two weeks, offering to pay him $200 per week, as well as transported him to and from medical appointments.

The conclusions reached by the trial commissioner focused around the, “applicability of the respondent’s defense that the claimant’s injury was statutorily deemed noncompensable.” The commissioner found that the, “twenty-six (26) hour rule” of employment embodied in the provisions of Conn. Gen. Stat. Sec. 31-275(9)(B)(iv) does not apply to the circumstances of the claim, regardless of the respondent’s original intent. Additionally, the Commissioner found that the respondents were in the business of commercial property management, and therefore could not deprive the claimant of employee status under the provisions of Conn. Gen. Stat. sec. 31-275(9) (B) (ii), by claiming that the employment of the claimant was “casual”, or that it was, “other than for the purposes of the employer’s trade or business.”

In reviewing this appeal, the CRB cited State v. Kevalis, 313 Conn. 590 (2014) in stating the appropriate standard for interpreting a statute. In said case, the Supreme Court stated the court, “must first consider the text of the statute and its relationship to other statutes to determine the meaning”, and that, “the test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” Derrane v. Hartford, 295 Conn. 35 (2010) was also cited interpreting the terms of Chapter 568, in which it was stated that, “When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment.” These rulings come into play, because the appellant selectively chose to incorporate the definition of a “private dwelling” from a statute entitled, “Discriminatory Housing Practices: Definitions”, which would have absolved him from providing compensation to the claimant. Therefore, the CRB rejected that claim in favor of court precedence and conformity in the context of statutes passed by the legislature, and stated that acceptance of the respondent’s interpretation would have led to the invalidation and to, “absurd or unworkable results.”

When addressing the other part of the appeal regarding incorporation of the 26 hour rule, the CRB stated that in Smith v. Yurkovsky, 265 Conn. 816 (2003), the legislative history of the passage of the 26-hour rule trumped a verbatim reading of it in a selective context. That case instead cited the 1961 Public Acts which including exemptions for those working on the “premises” of a private dwelling for less than 26 hours or 3 days per week. The CRB further validated its claim of “premises” by citing Perun v. Danbury, 5651 CRB-7-11-5 (May 15, 2012), in which the word “abode”, and “premises”, were deemed congruent with “curtilage.” Thus, the line of demarcation for injuries sustained, “at or about a dwelling,” now included the yard or other structures on the property. Lastly, the CRB proved that the injuries in fact occurred at a commercial property, and not a private dwelling as claimed by citing precedent in Davis v. Edward J. Corrigan, 4024 CRB-2-99-3(July 20,2000) in which the claim that the site of the injury was a, “private dwelling”, was denied, because the CRB found that, not unlike the respondent, “the employer is an experienced businessman and real estate developer, who would purchase dilapidated buildings with the intent to refurbish them.” Therefore, the respondent’s appeals were denied, the statutory exemption for Chapter 568 was not granted, and the original finding was upheld in which the respondents were ordered to pay the Award to the claimant.

Peter J. Zezima v. City of Stamford Board of Education Co. 5198 CRB-7-14-3

Summarized by Frank Kachmar; Legal Intern

This was an appeal in which the claimant wanted to reverse the trial commissioner’s dismissal arguing that it was, “against the weight of medical evidence.”

At trial, the Commissioner found a substantial number of inconsistencies in the medical evidence that the claimant provided. The discrepancy arose when it came to light that a January 13, 2009 automobile accident may have caused the claimant’s injury rather than a work-related injury as the result of an assault, which occurred on February 11, 2009. The Commissioner discredited the medical evidence provided by Dr. Moy, Dr. Kavookjian, Dr. Plancher, Dr. Fusco, Dr. Rago and Dr. Dowdle,because the claimant failed to make any of his doctors aware of his prior automobile accident which severely injured his left index finger, the same body part the claimant was claiming as compensable. Therefore, the Commissioner ruled that these statements had to be rejected as incomplete, because during their depositions it was made clear that the claimant withheld information of an automobile accident from his doctors, who had identified the source of the claimant’s injuries otherwise, without a complete medical history.

Curiously, Dr. Fusco testified during his deposition that the letter that he submitted identifying the claimant’s work-related injuries as the cause of degenerative joint disease and worsened osteoarthritis in his left index finger, was actually drafted by the claimant and not by him. Following this revelation, Dr. Fusco’s testimony was disregarded.

In the absence of credible and available medical information, the trial Commissioner considered the medical evidence and testimony of Dr. Tross, the respondent’s medical examiner. The Commissioner found Dr. Tross’s findings as credible, as he was fully aware of the claimant’s medical history, and independently and transparently conducted said examination. The Commissioner also found Dr. Tross’s examination as persuasive, having stated that the, “claimant’s need for surgery was not related to his February 11, 2009 work injury,” and rather that there was significant reason to believe his need for surgery was related to his January 2009 injuries sustained in a personal automobile accident. Therefore, the Commissioner ordered the claim, denied.

On appeal, the CRB extended deference to the decision made by the trial commissioner, citing Daniels v. Alexander, 268 Conn. 320,330 (2004). The CRB also stated that they could not overturn the ruling of a trial commissioner unless they are, “without evidentiary support, contrary to the law, or based on unreasonable or impermissible factual inference.” Kish v. Nursing and Home Care, Inc., 207 Conn. 535, 539 (1988).The CRB also upheld the Commissioner’s original review by citing, “The commissioner’s findings of basic facts and his finding as to whether those facts support an inference that the plaintiff’s injury arose from his employment are subject to a highly deferential standard of review.” Blakeslee v. Platt Bros. & Co., 279 Conn. 239, 253-254 (2006). (Emphasis in the original.)

The CRB also drew many parallels between this case, and those that had been recently litigated. Such a case includes, Camp v. Lupin Pharmaceuticals, Inc. 5936 CRB 6-14-06 (April 24, 2015), in which, “The primary focus of the case lay not in whether or not the claimant was involved in an incident while working…rather it was whether the impact of the incident had any material effect which caused or exacerbated the various ailments the claimant had associated with that incident.” The CRB also upheld the ruling of the Commissioner’s original finding by stating that it is “black letter law that it is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony.” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). The CRB also stated that if the commissioner found Dr. Tross’s opinion as more credible and persuasive than any of the opinion’s offered by the claimant’s witnesses, than she was, “entitled to rely on this opinion.” Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006).

Really Dad? Rocky Mountain High

Really-Dad-snow

Michael

When my buddy, Tom, invited me to join him and two other guys on a father-daughter trip to Breckenridge, I was all in.

Twenty or more snowstorms ago, it seemed like a good idea, but by mid-March when we departed, and our yard still resembled the Artic tundra, an unbroken vista of white that had not yielded an inch since the beginning of the year, the prospect of flying most of the way across country to get to a colder and snowier place had lost some of its appeal.

We flew out of Windsor on a Thursday afternoon, four giddy girls and their fathers headed for a long weekend of skiing in Breckenridge where Tom’s brother and sister-in-law live. Their house was perched at the base of the resort, some 9800 feet above feet above sea level, causing us to huff and puff up the stairs with our bags. “Rapid,” Tom’s brother, was all accelerator and no brakes, fully amped at all times, and eternally optimistic, despite having endured a season-ending shoulder injury a week earlier.

His wife, Dee, or “Delicious” as the girls dubbed her, was the perfectly-reserved foil for her hyper husband, and a generous tour guide, taking us up all five peaks, knowing where the groomed trails would be in the early morning, which bowls to bomb once the sun had hit them long enough, and how to avoid lift lines. The girls made fast friends, energizing and emboldening each other to carve some steep bowls and blast some tight tree runs. When they disappeared into the woods, we could keep track of them from the slopes by listening to their squeals of laughter echoing in the forest. The girls ate sandwiches that we dads carried in our backpacks, not wanting to waste any time in the lodge, skiing run after run down the diamond and double diamond trails.

We rode up the highest lift in the United States — which is 12,898 feet. From there you can hike up another 100 vertical feet if you have the lungs to carry your gear up the makeshift snow stairs to the absolute top of the world. The other fathers and daughters climbed that last bit, (including one of the fathers who had recently blown out his knee skiing) but Mickey and I were content to ski down to the Vista Haus, mid-mountain, to take a sun-bath on the patio.

Every night the girls lounged in the in the hot tub for an hour, even snow rolling one evening to get the endorphins flowing. After dinner, they sang along to the music piped into speakers through their I Phones, gave each other mini-makeovers and even washed the dishes on one night. We dads kept waiting for them to crash, night after night, but it never happened. Even though the youngest was 11 and Mickey was the oldest at 14, there was no whining and lots of smiles.

Too quickly Thursday had melted into Monday, and we had to head back to Denver to catch a plane. But first we spent a sun-drenched morning shopping on Main Street in Breck, ducking in and out of chic stores selling tee shirts, jackets hats, and other touristy items that we made room for in our already over-stuffed bags.

The younger girls were all holding their fathers’ hands, so apparently it was cool for Mickey to hold mine. Sure Breckenridge boasts of some of the best skiing in the country, but there was no greater thrill for me than walking down Main Street, the spring sun warm on my face, holding Mickey’s hand.

A look on the mountain.

Michaela

Each time we rode a chairlift, we got to the top and were presented with the same view, yet it never ceased to take our breath away. It was 12,898 feet in the air. It felt like we were standing on top of the world. We looked down, and far below us stood the trees. The wind whispered through the branches, sending beautiful little clouds of crystals skating across the mountain. The crystals were taunting us to join them. To drop down into the bowl and ride this astonishing creation with them.

We pointed our boards downhill, let gravity take over, and began to fly. It was hard not to feel completely vulnerable in this instant, but if you thought too hard about how fast you were going, you might wipe out. I just turned off that part of my brain and soared down the mountain, completely unafraid. . We carved down the mountain as fast as we could, ducking into the trees whenever there was a trail, and sometimes, when there wasn’t. I have never skied faster or further. I loved every second of every run.

At Breckenridge, there are five main peaks. On each peak, there is a base lodge and warming hut or restaurant lodge at the top. One of the peaks, Peak 7, has a lodge at the bottom aptly named the Grand Lodge, where my dad and I met some friends after the last run of our final day there. As I neared the bottom, I could see a five story building with balconies overlooking a large patio, with a view toward the mountains. When I popped out of my skis and leaned them against the fence, I noticed that there were three hot tubs, an outdoor heated pool that flowed indoors if you swam through the freezer flaps hanging down, and grills sizzling with hamburgers and hotdogs. Just on the other side of the fence people were wearing bikinis and shorts as they splashed in the water and walked on the heated patio.

Our friends had told us to bring our bathing suits, but as I opened the gate and clomped onto the patio with my ski boots, I kept thinking how surreal this was: on one side of the gate it was winter, and just a few inches on the other side, it was summer. I felt out of place in my boots and ski parka, but once we changed into our suits I made the transition in my head. We spent a few hours jumping in and out of the water, and getting too much sun, in spite of the sunscreen we slopped on. When it was time to go, it was back to winter again. We had to go back into the changing room, put on our winter gear, including our ski boots, to catch the shuttle back to the house.

When we were walking back to the bus stop, I caught a whiff of something that smelled like a skunk. I mentioned it to my dad, who explained that the smell was marijuana which is legal in Colorado. I added that to the list of unforgettable experiences in Breckenridge. The three days I stayed in Breckenridge Colorado will live with me forever. It was the most incredible experience I have ever had. I’m not sure that skiing in Vermont will ever be the same again.

Don Summers vs. R.R. Donnelley Printing Co.5914CRB-1-14-2

This was an appeal of the claimant’s bid for sanctions against the respondents for unreasonable delay. The claimant argues that the trial commissioner had pre-judged the motion for sanctions and denied a motion to depose the claim’s adjuster, which made it impossible for him to prove his case. The claimant argued that the commissioner had stated prior to the opening of the record that he would be “hard pressed to issue a finding of unreasonable contest/unreasonable delay and a fight on credibility.”

The CRB discussed the extraordinary remedy of recusing a trial commissioner. Citing a decision in Martinez vs. McCord, the CRB reiterated that “since the early days of Workers’ Compensation in Connecticut, the recusal of trial commissioners has been disfavored except for circumstances under which a trial commissioner determined on his or her own that their impartiality was at issue.” The CRB found in this case that the trial commissioner’s comments prior to trial that it would be an uphill battle to convince him to issue sanctions was not so prejudicial as to require a recusal. According to the Supreme Court’s dicta in State vs. Rizzo303Conn72(2011) “…opinions that judges may form as a result of what they learn in earlier proceedings in the same case ‘rarely’ constitute the type of bias or appearance of bias that requires recusal…To do so an opinion must be ‘so extreme as to display clear inability to render fair judgment.’” The CRB held that the information upon which the trial commissioner had developed his bias was not outside the record, but was based on a recitation of the facts prior to going on the record at trial. For this reason, the CRB found no error from the trial commissioner’s refusal to recuse himself in this matter.

However, when his refusal to recuse himself was added to the trial commissioner’s refusal to allow a deposition of the claims adjuster, which arguably would have been essential to proving the undue delay portion of this claim, the CRB held that the trial commissioner had abused his discretion in failing to allow the claimant every opportunity to adduce any relevant evidence on the issue of sanctions. “We are simply not persuaded that the claimant was availed of every opportunity in this case to rebut the evaluation as to the merit of sanctions the trial commissioner publicly stated at the commencement of this case prior to hearing any testimony on the record.”

As a consequence, the CRB vacated the trial commissioner’s dismissal of the sanctions issue and remanded it to a new trial commissioner for a de novo hearing, who was charged with determining whether to allow the deposition and then issuing a ruling on undue delay. Query whether the CRB had implicitly determined that the trial commissioner should have recused himself by awarding a de novo trial by another commissioner, ie, the CRB easily could have remanded the case back to the original trial commissioner with instructions to reconsider the request for deposition.

Really Dad? Snow Day

MICHAEL

Who doesn’t get a little giddy about the prospect of a guilt-free day off, courtesy of Mother Nature? For the kids, it’s like getting a free pass from the principal to skip a day with all of your friends. And for us grown-ups, what better excuse is there to stay home than a governor’s proclamation to keep off highways and byways?