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Rivera v. City of New Britain

CASE NO. 3501 CRB-06-96-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 28, 1998

ISMAEL RIVERA

CLAIMANT-APPELLEE

v.

CITY OF NEW BRITAIN

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Brian Doyle, Esq., Ferguson, Doyle & Springer, P.C., 35 Marshall Rd., Rocky Hill, CT 06067-1400.

The respondent was represented by Seth Feigenbaum, Esq., Office of Corporation Counsel, City of New Britain, 27 West Main St., New Britain, CT 06051.

This Petition for Review from the December 13, 1996 Finding and Award of the Commissioner acting for the Sixth District was heard August 15, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the December 13, 1996 Finding and Award of the Commissioner acting for the Sixth District. In that decision the trial commissioner concluded that the claimant, a special education teacher, sustained a compensable injury on March 10, 1995 when he was “breaking up” a fight between two students. The trial commissioner concluded that the March 10, 1995 incident was a substantial factor causing his need for medical treatment of his spine. In support of its appeal, the respondent contends that the claimant’s need for medical treatment was not caused by the incident, but was caused by a preexisting back condition. We find no error.

The trial commissioner found the following facts. In December of 1994, as a result of back pain and leg pain, the claimant consulted with Dr. Haugh, an orthopedic surgeon. An MRI showed a disc herniation at L4-L5, a disc bulge at L3-L4, and spinal stenosis. Dr. Haugh issued a report on January 11, 1995 indicating that the claimant was not a surgical candidate. The claimant did not return to Dr. Haugh because he was feeling good. On March 10, 1995 while at work the claimant broke up a fight between two students. The claimant testified regarding the force he had to use to restrain the student and escort her out, including lifting her with his leg. The claimant testified that subsequently his back condition became much worse, and that the pain was different and more severe than the pain he had experienced in 1994.

Dr. Richard Simon, a neurosurgeon, performed disc surgery on May 3, 1995. Dr. Simon opined that the March 10, 1995 incident was the substantial factor in causing the disc operation. An independent medical examination was performed at the request of the respondent by Dr. Melville Roberts, a neurosurgeon, who opined that the March 10, 1995 incident was not a substantial factor.

The respondent contends that the trial commissioner erred by not following the opinion of Dr. William Druckemiller who, at the request of a different trial commissioner at a prior informal hearing, had examined medical reports and had written a report. In Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 1829 CRB-3-93-9 (April 25, 1995), aff’d., 40 Conn. App. 918 (1996) (per curiam), the board recognized that parties usually expect a § 31-294f medical examination to provide the trier with strong guidance. In Iannotti, we stated that “(w)here a commissioner chooses not to adopt the diagnosis of the physician performing that examination, he or she should articulate the reasons behind his or her decision to disregard the examiner’s report.” Id., 321. The instant case is significantly different from Iannotti, however, because here Dr. Druckemiller did not perform an examination of the claimant, even though the claimant was presumably available. Rather, he merely reviewed some of the medical reports, and answered several questions in writing. (Respondent’s Exh. 6). Accordingly, we see no reason to hold Dr. Druckemiller’s report to the same standard as a report based upon a medical examination of a claimant conducted pursuant to § 31-294f.

In further support of its appeal, the respondent contends that the opinion of Dr. Simon does not support causation. The respondent’s argument on appeal is essentially that the trial commissioner’s conclusion is not supported by the evidence. Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987).

The power and duty of determining the facts rests on the trial commissioner as the trier of fact. 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.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the trial commissioner determined that the claimant’s condition was caused by the compensable incident of March 10, 1995. The trial commissioner’s findings of fact and conclusion are fully supported by the record. It was within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of Dr. Simon, the physician who performed the surgery, than to the opinion of Dr. Roberts. We note that the respondent now contends that Dr. Simon was not an authorized treater and thus that his testimony “should have been deemed inadmissible.” (Respondent’s Brief at p. 10). However, the respondent agreed to a stipulation of facts which specifically provided for Dr. Simon’s deposition and medical reports to be entered into evidence. (Joint Exh. No. 1).

Where, as here, the commissioner’s determination is based upon the weight and credibility that he has accorded the evidence, we will not disturb such a determination. Dickey v. Harris Graphics, 12 Conn. Workers’ Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994); see also Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996).

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

Workers’ Compensation Commission

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