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Green v. State of Connecticut/University of Connecticut

CASE NO. 2283 CRB-2-95-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 28, 1996

LINDA GREEN

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/UNIVERSITY OF CONNECTICUT

EMPLOYER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Mark W. Oberlatz, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P. C., 475 Bridge St., P. O. Drawer 929, Groton, CT 06340.

The respondents were represented by Lisa Guttenberg Weis, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 24, 1995 Finding of the Commissioner acting for the Second District was heard December 1, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 24, 1995 Finding of the Commissioner acting for the Second District. She argues on appeal that the commissioner erroneously ruled that the claimant had failed to establish a prima facie claim that her disability was causally related to a compensable injury. We affirm the trial commissioner’s decision.

The claimant contracted polio in 1960, when she was just over one year old. She was hospitalized on numerous occasions as a result, and had several operations on her legs between 1968 and 1974 to correct the effects of the disease. She began working for the state after graduating from high school in 1978. While working at the University of Connecticut infirmary in 1988, the claimant injured her right knee and back in a falling incident. She began treating with Dr. Messinger, who noted that she was developing post-polio syndrome. Dr. Messinger stated that it was possible that the claimant’s back pain and weakness in her arms and right leg were due to post-polio syndrome, which could have been aggravated by her 1988 injury. He stated that the injury might have helped cause the increased severity of the post-polio syndrome, and separately rated the claimant as having 5 percent disability to her back and knee from the 1988 injury.

The claimant was subsequently examined by many other doctors, who generally agreed that she suffered from post-polio syndrome. Just one of those experts, Dr. Arnold, gave an opinion directly linking the claimant’s compensable injuries with her post-polio syndrome. The only physician who testified was Dr. Fisher, an independent medical examiner who was of the opinion that the injury caused only a small part of the significant permanent disability now experienced by the claimant. The commissioner therefore concluded that the claimant’s work injury, “while causing a separate disability cannot, within a reasonable degree of medical probability, be linked to the onset of the progression of the neurologic disturbances experienced after 1988. . . . The claimant failed to meet the burden of establishing that the post-polio or neurologic syndrome is causally related to the work injury. Quite simply, the physicians’ reports submitted into evidence do not suffice to establish the requisite causal connection.” The claimant has appealed that decision.

The claimant contends that, instead of making her ruling on the basis of all the evidence, the commissioner ruled that the claimant had failed to introduce sufficient evidence to meet her burden of proof. Thus, the commissioner’s decision amounts to a ruling on a nonsuit. The claimant then argues that, in order to make such a decision, a court must weigh all of the evidence in the light most favorable to the claimant, and still be unable to reach a decision in the claimant’s favor. Since there was evidence supporting the claimant’s position, notably Dr. Arnold’s medical opinion, the claimant argues that she has established a prima facie case here, and that this matter should be remanded for further proceedings base on all of the evidence.

We disagree with this characterization of the proceedings. The commissioner clearly discussed and considered many different medical opinions in her decision, as is proper at a formal hearing. It was then her prerogative to weigh their credibility, and make factual findings on the basis of that evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Although the commissioner may have stated in her conclusions that the claimant failed to “meet the burden of establishing” that her disability was connected with her work injury, we do not take this to mean that she did not evaluate the credibility of the medical evidence in reaching her decision.

The commissioner ‘s opinion as a whole enumerates various medical diagnoses, most of which do not make a strong connection between the claimant’s post-polio syndrome and her 1988 work injury. She notes the “conflicting and complex medical records” in her decision, but concludes that the evidence is not strong enough to establish the causal connection desired by the claimant. Rather than being the equivalent of a nonsuit, or a summary judgment in favor of the defense, this decision is typical of any workers’ compensation case in which a commissioner looks at the evidence presented by a claimant and decides that it is not strong enough to support her claim. The claimant’s attempt to frame the proceedings below as a situation where the decisionmaker failed to evaluate the actual evidence ignores both the substance of the commissioner’s decision and this Commission’s customs and procedures in general.

The trial commissioner’s decision is affirmed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

Workers’ Compensation Commission

Page last revised: May 11, 2005

Page URL: http://wcc.state.ct.us/crb/1996/2283crb.htm

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