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Brown v. Town of Greenwich

CASE NO. 3521 CRB-07-97-02

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 31, 1998

ROBERT J. BROWN

CLAIMANT-APPELLEE

v.

TOWN OF GREENWICH

EMPLOYER

and

SEDGWICK JAMES

SELF-INSURED ADMINISTRATOR

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by John F. Slane, Esq., Heagney, Lennon & Slane, 248 Greenwich Ave., P. O. Box 910, Greenwich, CT 06836-7910.

The respondents were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the January 24, 1997 Finding and Award of the Commissioner acting for the Seventh District was heard September 5, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners John A. Mastropietro and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 24, 1997 Finding and Award of the Commissioner acting for the Seventh District. They argue on appeal that the commissioner erred by finding the claimant’s left knee injury compensable. We affirm the trial commissioner’s decision.

The respondent Town of Greenwich hired Robert Brown as a police officer in 1969. He suffered various injuries to his left knee, differing in type and severity, between 1973 and 1983. The commissioner found that from sometime in 1983 through 1987, the claimant’s left knee problems were asymptomatic.

The claimant’s treating orthopedic surgeon, Dr. Rodda, advised the respondent that the claimant should not work directing traffic. Nonetheless, he was assigned to traffic duty on January 7, 1987. After about two and one-half hours of guiding traffic, he developed severe pain and swelling in his left knee. Arthroscopic surgery was performed shortly thereafter by Dr. Rodda, and continued deterioration of the knee due to osteoarthritis led to a total knee replacement in 1994. Dr. Rodda reported that the claimant had suffered trauma to his left knee while on the job, and the aggravation of his post-traumatic arthritis led to arthroscopy and knee arthroplasty. He stated that the 1987 knee injury was the sole cause of the need for the knee replacement.

Dr. Lynch, an independent medical examiner, agreed with Dr. Rodda that the claimant had a 40% permanent partial disability of his left lower extremity. He did not believe that the claimant suffered an injury on January 7, 1987, or that his need for surgery was due to his stint directing traffic on that date. Dr. Fisher, who performed an examination pursuant to the commissioner’s request, concurred with Dr. Lynch’s diagnosis. However, Dr. Gibson, who was listed on a 1991 voluntary agreement as the claimant’s authorized physician along with Dr. Rodda, stated in a 1991 medical opinion that the claimant had suffered an injury several years earlier that had caused severe degenerative joint disease.

The trial commissioner found that the employer had accepted the compensability of the claimant’s left knee osteoarthritis by voluntary agreement as of June 3, 1991. He also found that the claimant suffered an aggravation of his left knee condition on January 7, 1987, which led to his knee replacement. He specifically stated that Dr. Rodda’s reports “were far more substantial than the reports of the Independent Medical Examiner, or Commissioner’s Examiner.” He ordered the respondents to pay for the claimant’s 40% permanent partial disability and the unpaid balance of any medical bills reasonably related to treatment of his left knee. The respondents have appealed that decision.

The respondents’ argument, to quote their brief, is that “the overwhelming medical evidence presented did not support a compensable claim.” They cite Dr. Lynch’s opinion, and the report from Dr. Fisher’s § 31-294f examination. According to the respondents, “Dr. Rodda’s opinion is simply not strong enough to overcome and disregard the opinions of Dr. Lynch and Dr. Fisher.”

The trial commissioner normally orders a commissioner’s examination when the evidence is in conflict, or when he believes that he does not have enough evidence to make a decision. Nieves v. SCM Company, 3317 CRB-6-96-4 (decided July 9, 1997). Although the parties may reasonably expect that the examiner’s report will provide the commissioner with strong guidance, the trier of fact is never required to adopt any one diagnosis. Id.; Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995), aff’d, 40 Conn. App. 918 (1996) (per curiam). “This board will not encroach upon the fact-finding authority of a commissioner to decide which evidence is the most credible simply because the commissioner ordered one of the medical examinations. . . . There is no legal presumption of credibility for any expert witness in a workers’ compensation case, even one whom the parties assume is acting as a “tiebreaker” for the commissioner.” Nieves, supra; see also Gillis v. Waterbury Construction, 3337 CRB-5-96-5 (decided July 15, 1997).

Here, the trial commissioner used his authority as the fact-finder to weigh the credibility of all the medical reports before him. See Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). He decided that Dr. Rodda’s reports were more thorough than those of Drs. Lynch and Fisher, and adopted his medical opinion. That is a perfectly permissible use of the commissioner’s power to try the facts and evaluate the evidence, and we may not disturb that factual finding on appeal. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra. As this finding supports the commissioner’s award of benefits to the claimant, the trier’s ruling must stand on review. Fair, supra.

We hereby affirm the trial commissioner’s decision. Insofar as any compensation due has not yet been paid, the claimant is entitled to interest pursuant to § 31-301c(b).

Commissioners John A. Mastropietro and Stephen B. Delaney concur.

Workers’ Compensation Commission

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