CASE NO. 3350 CRB-1-96-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 4, 1997
STATE OF CONNECTICUT/STATE LIBRARY
The claimant was represented by Mark Johnson, Esq., Law Offices of Jeffrey C. Nicholas, 373 Prospect St., Torrington, CT 06790.
The respondent was represented by Donna Hixon-Smith, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the May 23, 1996 Finding and Award of the Commissioner acting for the First District was heard March 14, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the May 23, 1996 Finding and Award of the Commissioner acting for the First District. It argues on appeal that the trier erred on several grounds, including finding the incorrect date of injury, finding a compensable injury to the claimant’s neck, and in finding that the respondent had unreasonably contested this case. We agree with many of the respondent’s arguments, and reverse the trial commissioner’s decision.
The trier found that the claimant began to experience tension in her upper body and stiffness in her neck during May and June of 1993, while working for the State Law Library on Capitol Avenue in Hartford. She believes this pain came about because she was constantly cradling a telephone receiver between her head and shoulder while using her hands to type, access information on the computer or search through her files. She treated with two chiropractors, and after experiencing pain in her right arm that October, she saw a neurosurgeon, who diagnosed a herniated disc at C6-C7. Three doctors recommended she have spinal surgery, and she underwent an anterior discectomy and fusion on February 10, 1994. As a result, she was temporarily totally disabled until May 10, 1994. She reached maximum medical improvement on June 20, 1994, with a 10% permanent partial disability of the cervical spine.
The commissioner concluded that the claimant suffered a compensable repetitive trauma injury “that manifested itself on or before May 21, 1993,”1 and that she was entitled to temporary total disability benefits and a 10% permanency award for her cervical spine. She also ruled that the respondent unreasonably contested the claim, as it never had the claimant examined by a physician, nor did it offer evidence to refute her case. She consequently awarded interest and attorney’s fees pursuant to § 31-300. The respondent has appealed that decision.
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 authority to find the facts 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). 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. The commissioner’s findings can be changed only if they contain facts found without evidence or fail to include material facts which are admitted and undisputed. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).
Despite this deferential standard of review, there still must be evidence in the record to support a commissioner’s decision. Here, the burden of proving a causal relationship between the claimant’s employment and her injuries was on the claimant, and could only be met by competent medical evidence that established such a connection within a reasonable degree of medical probability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). Although the words “reasonably medically probable” need not be recited verbatim in the evidence, the substance of the medical opinion of at least one doctor must reach that degree of strength. Smith v. UTC/Pratt & Whitney, 3134 CRB-3-95-6 (decided April 4, 1997); Webb, supra, 72.
The trial commissioner does not state which doctor she specifically relied on in finding a causal connection here. She cites Dr. Rossi’s opinion in setting forth the claimant’s percentage of permanent partial impairment and her maximum medical improvement date, but she does not discuss medical causation at all. She appears to have been swayed by the fact that the respondent offered no witnesses or medical evidence to refute the claimant’s case, including an independent medical examination. At oral argument, the respondent explained that it offered no such evidence because it did not believe the claimant had made a prima facie showing of a causal relationship in the first place. The claimant responds in her brief that several doctors’ opinions state that the claimant’s employment was a substantial factor in causing her injury.
A look at all of the claimant’s exhibits shows that only two directly address the issue of causation. Dr. Rubin’s December 4, 1995 report, Exhibit F, states that “Mrs. Kincaid-Ross’s problems are a substantial contributing factor to her difficulties, although I cannot give a direct causal relationship of the disc to these problems, I do think they are a major contributing factor in her ongoing disability.” Dr. Rossi’s April 1, 1994 report, Exhibit E, states that “[w]ithout a specific precipitating event or injury, it is impossible to determine exactly what caused Ms. Kincaid-Ross’s disc rupture. However, it is clear from my initial interview with [the claimant] that the activities of her job were a substantial aggravating factor to her complaint.”
Whether or not these opinions rise beyond the level of speculation and conjecture to qualify as statements based on a reasonable degree of medical probability is questionable. See Struckman v. Burns, 205 Conn. 542, 554-55 (1987). However, the trial commissioner did not indicate which, if either, of them she was relying on in her decision. She also made no attempt to explain the medical progression of the claimant’s alleged repetitive trauma into a herniated cervical disc. Before we may fully pass on this issue, this case must be remanded to the trial commissioner for clarification as to the basis of her decision that there was a causal connection between the claimant’s employment and her herniated disc in this case.
Given our decision on this issue, we must reverse the commissioner’s award of 10% permanent partial impairment of the cervical spine, as it lacks adequate support in the factual findings for the reasons discussed above. Further, the trier’s order that the respondent pay interest and attorney’s fees for unreasonably contesting the claim must be reversed as well. Although unreasonable contest is a question of fact, see Sanchez v. Steben’s Motors, 3247 CRB-6-96-1 (decided Dec. 24, 1996), there are clearly insufficient grounds for such an award as this matter stands right now. See Miner v. Town of Watertown, 10 Conn. Workers’ Comp. Rev. Op. 100, 103, 971 CRB-5-90-1 (April 28, 1992). The respondent also points out that the hearing notice referred only to “compensability/causal connection” as the issue for discussion at the formal hearing. Although this could encompass a broad range of topics, neither permanency nor unreasonable contest is contemplated by such notice, and the parties did not address the issue of undue delay or unreasonable contest at the formal hearing. We do not believe that either award can stand under the facts and circumstances of this case.
Commissioners James J. Metro and John A. Mastropietro concur.
1 The date of injury listed in the claimant’s Form 30C and in the respondent’s Form 43 is July 21, 1993. This date is also referenced by the commissioner on page 4 of the April 16, 1996 formal hearing transcript. The use of “May 21, 1993” appears to be a simple typographical error that remained uncorrected by oversight, and we will not read anything else into it. BACK TO TEXT