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Elderkin v. Hamilton Pavilion

CASE NO. 1650 CRB-2-93-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 25, 1995

TINA ELDERKIN

CLAIMANT-APPELLANT

v.

HAMILTON PAVILION

EMPLOYER

and

CRAWFORD & CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Mark W. Oberlatz, Esq. and Amy Stone, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., P.O. Drawer 929, Groton, CT 06340.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike #401, Vernon, CT 06066.

This Petition for Review from the February 8, 1993 Finding and Award of the Commissioner for the Second District was heard February 25, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 8, 1993 Finding and Award of the Commissioner for the Second District. She contends on appeal that the commissioner improperly concluded that an injury sustained by the claimant in a fall down the stairs at her home was not caused by a prior compensable injury and that the resulting surgery and disability was not the liability of the employer. We affirm the trial commissioner’s decision.

The claimant first injured her back on January 8, 1990 while performing her duties as a nurse’s aide. Her treating physician diagnosed her with a disc fracture, and concluded that she reached maximum medical improvement on October 30, 1990 with ten percent permanent partial impairment of her back. The claimant’s back pain continued, so she visited Dr. Roberts, a neurosurgeon, who performed surgery on the claimant’s back on February 12, 1991. Two weeks later, the claimant reported feeling much better when Dr. Roberts visited her.

While at home on March 5, 1991, the claimant fell down the stairs while carrying a load of laundry. Although the hospital report reflects that the claimant fainted and then fell, the claimant contends that she actually told the emergency room personnel that her right leg gave out, causing her to fall, hit her head and pass out. Dr. Roberts reported that the claimant told him she slipped at the top of the stairs and fell. Regardless of the cause, the fall caused the plaintiff to again fracture her disc, requiring further surgery on March 25, 1991 and resulting in an additional five percent disability to her back.

In his findings, the commissioner noted Dr. Roberts’ testimony that the work injury and resulting surgery constituted a substantial factor in producing the second injury and need for surgery. He also noted the doctor’s opinion that the claimant had a ten percent chance of reinjury no matter what she did, as she was prone to further disc herniations as a result of her compensable injury. The commissioner concluded that the claimant’s fall at home was not caused by the prior work-related injury, and ordered the respondents to take responsibility only for the benefits related to the original injury and ten percent permanent partial impairment of the claimant’s back.

The claimant argues on appeal that Dr. Roberts’ “substantial factor” testimony required the commissioner to find that the respondents were liable for the additional disability related to that injury. She contends that the commissioner utilized an improper legal standard in finding that the claimant’s fall down the stairs constituted an intervening event sufficient to relieve the respondents of further liability.

Whether the claimant suffered a new back injury rather than a recurrence of a previous injury is a factual determination for the trial commissioner to make. D’Agostinov. City of Waterbury, 10 Conn. Workers’ Comp. Rev. Op. 4, 5, 942 CRD-5-89-11 (1991); Janov v. General Electric Co., 4 Conn. Workers’ Comp. Rev. Op. 44, 45, 491 CRD-4-86 (1987). The commissioner’s conclusions must stand “unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988), quoting Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979).

In this case, evidence existed to support a determination that the portion of the claimant’s injuries resulting from the fall down the stairs was not caused by the initial work-related injury. The claimant’s statements in the emergency room report and to Dr. Roberts regarding the circumstances of her fall down the stairs, along with Dr. Roberts’ testimony that the claimant reported herself as feeling much better two weeks after the surgery for her first injury, support the conclusion that the fall down the stairs was not caused by the prior injury. In fact, the doctor also testified that the second surgery was necessitated by the claimant’s fall down the stairs, and would not have occurred had the stairway accident not taken place. These facts are sufficient to support the legal conclusion of the trial commissioner.

The fact that Dr. Roberts was found to have testified that the claimant’s first injury and resulting surgery were a substantial factor in producing the second herniation and surgery did not of itself require the commissioner to find that the second injury was legally caused by the first injury. Aside from the commissioner’s discretion to weigh the credibility of such testimony in choosing whether or not to rely upon it, see Cholewinskiv. Brake Systems, Inc., 6 Conn. Workers’ Comp. Rev. Op. 105, 601 CRD-4-87 (1989), the commissioner also has discretion to determine whether or not an accident constitutes an intervening cause, so long as his decision is supported by evidence. Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338, 343 (1952).

Commissioners Nancy A. Brouillet and Michael S. Miles concur.

Workers’ Compensation Commission

Page last revised: January 21, 2005

Page URL: http://wcc.state.ct.us/crb/1995/1650crb.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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