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Plitnick v. Knoll Pharmaceuticals

CASE NO. 1699 CRB-8-93-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 7, 1994

JOSEPH PLITNICK

CLAIMANT-APPELLEE

v.

KNOLL PHARMACEUTICALS

EMPLOYER

and

ZURICH AMERICAN INSURANCE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Kevin W. Finch, Esq., P.O. Box 2233, 244 Bridgeport Ave., Milford, CT 06460.

The respondents were represented by Kevin Maher, Esq., Maher & Williams, P. O. Box 269, Bridgeport, CT 06601.

This petition for Review from the April 13, 1993 Finding and Award of Compensation of the Commissioner for the Eighth District was heard April 8, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE FRANKL, CHAIRMAN. The respondents petitioned for review from the April 13, 1993 Finding and Award of the Commissioner for the Eighth District. In that finding and award, the commissioner concluded that the claimant suffered a back injury on October 9, 1990 arising out of and in the course of his employment with the respondent, Knoll Pharmaceuticals, and that said injury, coupled with the extensive driving duties attendant to the claimant’s employment, caused the claimant to need back surgery. The respondents’ motion to correct the commissioner’s findings was granted and denied in part. Respondents contend on appea1: 1) that the commissioner improperly denied in part their motion to correct, and 2) that the commissioner’s finding and award is not legally supported by the facts found. We affirm the trial commissioner.

The respondents claim that the facts recited in their motion to correct were all “material and undisputed,” and that they established that the claimant failed to sustain his burden of proof that the October 9, 1990 incident and the claimant’s driving responsibilities for the respondent were the cause of his injury. The respondents rely heavily on McQuade v. Ashford, 130 Conn. 478, 482 (1944), in support of their argument that “as a matter of law, the Commissioner’s findings must include all material, proven facts presented by both parties.”

The plaintiff in McQuade moved to introduce fifteen corrected findings of fact. His motion was denied by the commissioner on the ground that, even if he granted the motion in its entirety, his ruling would remain the same. Our Supreme Court held that “[t]he finding in a compensation case ‘should contain all the subordinate facts which are pertinent to the inquiry, and the conclusions of the commissioner therefrom. . . . If a finding does not conform to these requirements, . . . [a reviewing court is not] in a position to decide whether the award was correct and just or not.” McQuade v. Ashford, supra, 130 Conn. at 482, quoting Rossi v. Jackson Co., 117 Conn. 603, 605 (1933). In order to determine the legality of the commissioner’s conclusion that the plaintiff’s injury was not caused by a work-related accident, the Court ordered that the commissioner correct the finding “by adding such of those facts contained in the plaintiff’s motion to correct as he found to be either undisputed or established upon conflicting evidence.” McQuade v. Ashford, supra, 484.

Although the McQuade holding was interpreted to require a commissioner to set forth findings of fact regardless of their bearing on the ultimate outcome in one of our decisions, see Calvanese v. Springfield Sugar, 6 Conn. Workers’ Comp. Rev. Op. 52, 53, 549 CRD-1-87 (1988) (proper explanation should have been given why medical opinions as to causality were not persuasive when no contrary medical testimony was offered), most of the decisions following McQuade have been less absolute in requiring every finding of fact to be set forth. For example, in Adzima v. UAC/Norden Division, 177 Conn. 107 (1979), our Supreme Court held that the finding of the commissioner “`should contain only the ultimate, relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from evidence or merely evidential facts, nor the opinions or beliefs of the commissioner, nor the reasons for his conclusions.’” Id., 118; quoting Practice Book, 1978, § 435. In Adzima, the Court ruled that, as the commissioner’s finding was based on conflicting medical testimony, the addition of certain facts contained in the motion would not improve the plaintiff’s position. Thus, the commissioner did not err in denying the motion to correct. Moreover, in cases as venerable as Tortorici v. Moosup, Inc., 107 Conn. 143, 144 (1927), and as recent as Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994), our courts have held that the absence of an effect on the result of a compensation claim was a legitimate reason to refuse to grant a motion to correct the findings. See also Kluttz v. Howard, 228 Conn. 401, 405 n.5 (1994); Beninato v. Specialty Framing, Inc., 11 Conn. Workers’ Comp. Rev. Op. 200, 203, 1306 CRD-8-91-9 (1993).

Indeed, it is beyond dispute that the conclusions drawn by the commissioner from the facts found must stand unless they result from a misapplication of the law to the facts or from an illegal or unreasonable inference drawn from the subordinate facts, and that this board may not retry the facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Romanski v. West Hartford, 34 Conn. App. 307, 316 (1994). “To the extent that the commissioner’s finding discloses facts, his finding cannot be changed unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed.” Grady v. St. Mary’s Hospital, 179 Conn. 662, 669 (1980); Wheat v. Red Star Express Lines, 156 Conn. 245, 248 (1968).

A material fact is defined as one that will affect the outcome of a case. Tovish v. Gerber Electronics, supra, 32 Conn. App. 599. In this case, most of the facts offered by the respondents consist of statements taken out of the context of witnesses’ depositions, which statements were subject to the commissioner’s credibility analysis. The transcripts indicate that there was sufficient testimonial evidence available for the commissioner to determine that the claimant had suffered a back injury while working for Knoll Pharmaceuticals, and that the surgery subsequently required on his back was a result of that injury. The commissioner thus reached a reasonable factual conclusion from the testimony offered, and even if this Board accepted as true the corrected findings offered by the respondents that were not expressly or implicitly contradicted by the findings of the commissioner, making such corrections would have no impact on the ultimate outcome of this case. The respondents’ first claim of error is denied.

The respondents also challenge the commissioner’s conclusion that the claimant’s injury arose out of and in the course of his employment with Knoll Pharmaceuticals. They claim that the claimant’s injury was coincidental with his employment, rather than caused by it. See Madore v. New Departure Mfg. Co., 104 Conn. 709, 713 (1926). “Determining whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” Crochiere v. Board of Education, 227 Conn. 333, 346 (1993); Fair v. People’s Savings Bank, supra, 207 Conn. 539. Proof that the injury “arose out of” the employment relates to the time, site and circumstances of the injury, while proof that an injury occurred “in the course of” the employment is made by demonstrating that the injury occurred during the employment period at a place the employee could reasonably be, and occurred while the employee was reasonably fulfilling his or her employment duties or doing something incidental to employment. Crochiere v. Board of Education, supra, 349; McNamara v. Hamden, 176 Conn. 547, 550-51 (1979).

We have already stated that there was sufficient evidence from which the commissioner could have determined that the plaintiff injured his back while working for the respondent employer. Thus, there can be little dispute that the commissioner was entitled to infer that the claimant was injured “in the course of” his employment. Similarly, the commissioner had ample evidence to determine that the injury “arose out of” the claimant’s employment. Despite the claimant’s history of back ailments and the occurrence of an October 29, 1990 car accident, there was significant medical evidence that the October 9, 1990 incident and the claimant’s extensive driving substantially aggravated his underlying back condition and caused him to require surgery to alleviate that condition.

Moreover, the commissioner’s conclusion as to causation is not based on mere conjecture. Dr. Jay Krompinger, an orthopedist, testified that the claimant’s need for surgery was the result of his working activity “in best medical probability.” His failure to use the magic words “reasonable degree of medical probability,” despite the argument of the respondents, does not preclude a finding that the claimant’s injury and need for surgery were caused by his employment activities. Struckman v. Burns, 205 Conn. 542, 554-55 (1987). Thus, we hold that the commissioner’s legal conclusion was reasonably drawn from the facts, and the respondents’ second claim of error is also denied.

We therefore affirm the Eighth District’s April 13, 1993 Finding and Award and dismiss the respondents’ appeal. Because insufficient evidence existed for the commissioner to determine the claimant’s claim of incapacity beyond December 1, 1990 or the average weekly wage of the claimant, we remand this matter to the Eighth District for further proceedings.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

Workers’ Compensation Commission

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