State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Leroux v. Lenders Bagel Bakery

CASE NO. 2110 CRB-3-94-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 28, 1995

JOHN LEROUX

CLAIMANT-APPELLANT

v.

LENDERS BAGEL BAKERY

EMPLOYER

and

CRAWFORD & CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Kathleen M. Byrne, Esq., Byrne & Letizia, 1764 Litchfield Tpke., Suite 106, Woodbridge, CT 06525.

The respondents were represented by Joseph F. Trotta, Esq., Trotta, Trotta & Trotta, 195 Church St., New Haven, CT 06510.

This Petition for Review from the July 21, 1994 Finding of Dismissal of Lumbar Spine Injury Claim of the Commissioner acting for the Third District was heard April 21, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 21, 1994 Finding of Dismissal of Lumbar Spine Injury Claim by the Commissioner acting for the Third District. On appeal, he argues that the trial commissioner erroneously denied his Motion to Correct, and that the evidence and subordinate facts do not support the commissioner’s decision. We dismiss the claimant’s appeal and affirm the decision of the trial commissioner.

The trial commissioner found that the claimant was employed as a truck driver by the respondent, a West Haven bakery, on November 4, 1988. While unloading pallets of frozen bagels at a New Jersey destination, the claimant was thrown from his forklift and caught his foot between the forklift and the wall of his truck. He alleges that his back struck the wall and he landed in a twisted position. The claimant freed himself, and was taken to a New Jersey hospital, where x-rays showed a fractured right ankle. As a result of that injury, the claimant’s treating physician, Dr. Luchini, totally disabled him from the date of injury through March 13, 1989. He returned the claimant to work in May 1989.

Afterward, the claimant continued to have pain in his ankle. Steroid injections, arthroscopic surgery, and a nerve block procedure all failed to alleviate this pain, and after a lumbar sympathectomy the claimant experienced back pain that radiated down to the claimant’s right ankle. A CAT scan revealed a herniated disc, and a neurosurgeon, Dr. Sabshin, performed lumbar spine surgery on October 29, 1991. The claimant alleges that his ankle pain stopped after the surgery. Dr. Sabshin stated that the claimant was totally disabled until October 1, 1992, when he was released for light duty work. The claimant alleges that the lumbar spine surgery was caused by a lumbar spine injury on November 4, 1988, and alternatively that the back injury could have resulted from his ankle problems.

Drs. Luchini, Marando and Sabshin all opined that the claimant’s back injury either occurred at the time of the ankle injury or resulted from the treatment for the ankle injury, although the trial commissioner found that Dr. Sabshin also acknowledged the possibility that the disc herniation occurred after the forklift incident and was unrelated. Noting that the claimant had not complained of back pain prior to the diagnosis of a herniated disc two and one-half years after the ankle injury, the commissioner concluded that the medical evidence was insufficient to causally relate the lumbar spine surgery to the claimant’s ankle injury. He therefore dismissed the claim. An appeal and a Motion to Correct by the claimant followed; the commissioner denied the Motion to Correct in full.

The claimant’s argument on appeal is essentially that the commissioner’s conclusion is not supported by the evidence. “As we have often stated, the power and duty of determining the facts rests on the commissioner, who is the trier of fact. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988), citing Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457 (1951). This fact-finding authority entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses. Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994).” Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995). The commissioner’s findings must include only the material facts essential to the case and a statement of his conclusions; it should not contain merely evidential facts. Id. Whether an injury arose out of and in the course of a claimant’s employment is a question of fact. Fair, supra, 541; Sylvia v. Victorian Salon, 1976 CRB-2-94-2 (decided Sept. 6, 1995).

“On review, 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.” Id. Where suggested factual corrections would not alter the legal conclusion of a commissioner, we will uphold his or her refusal to grant a Motion to Correct. Id; Wrighten v. Burns International Security, 13 Conn. Workers’ Comp. Rev. Op. 173, 1659 CRB-2-93-2 (March 10, 1995). The corrections sought by the claimant fall into this category, as they merely elaborate on his symptoms of pain and his history of medical treatment, or attempt to restate the doctors’ medical conclusions regarding causation.

None of the corrections requested by the claimant would overcome the impact of the trial commissioner’s authority to assess the credibility of the claimant’s doctors, however. As the respondents note, none of the doctors was able to pinpoint the origin of the claimant’s herniated disc, and it is uncontested that the claimant did not complain of back pain until 1991. The claimant’s attempts to clarify these circumstances in his Motion to Correct were thwarted by the trial commissioner, indicating that he did not agree with those corrections, or think them important. The claimant’s case rests largely on the testimony of two physicians who offered various alternative explanations as to the relationship of his back injury to the November 1988 forklift incident. Although the medical evidence might be enough to support a finding of compensability, the trial commissioner was not required to give the it credence. We certainly cannot hold that the evidence of causation in this case was so strong that the commissioner committed error by failing to rely on it.

The trial commissioner’s decision is affirmed.

Commissioners Amado J. Vargas and Michael S. Miles concur.

Workers’ Compensation Commission

Page last revised: January 21, 2005

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