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Croxford v. Columbia Manufacturing

CASE NO. 3758 CRB-02-98-01

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 1, 1999

MARK CROXFORD

CLAIMANT-APPELLEE

v.

COLUMBIA MANUFACTURING

EMPLOYER

and

GREATER NEW YORK INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Donald C. Cousins, Esq., Cousins & Johnson, P.C., 2563 Main Street, Stratford, CT 06497.

The respondents were represented by Christopher J. Foley, Esq., 3000 Whitney Avenue, Suite 103, Hamden, CT 06518-2353.

This Petition for Review from the January 7, 1998 Finding and Award of the Commissioner acting for the Second District was heard September 18, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 7, 1998 Findings of Facts and Award of the commissioner acting for the Second District. The trial commissioner found in that decision that the claimant suffered a vertebral artery dissection injury which lead to a brain stem stroke, and that those injuries were related to the claimant’s work activities. Subsequently, the trial commissioner ordered the respondents to accept liability for the claimant’s claim. The respondents argue on appeal that the trial commissioner erred in his findings. We affirm the trial commissioner’s decision.

The trial commissioner found the following relevant facts. The claimant was a truck driver for the respondent Columbia Manufacturing on July 11, 1996. In addition to driving the truck, the claimant’s duties included loading parts onto the truck, moving heavier parts within the truck, and obtaining boxes from overhead. (Findings, ¶¶ 4-5). On July 11, 1996, the claimant suffered a vertebral artery dissection injury which lead to a brain stem stroke. Dr. Stephen R. Conway, who treated the claimant, opined that there was a causal connection between the claimant’s work activities and his vertebral artery dissection injury and brain stem stroke. Dr. Stephen C. Lange, at the request of the respondents, performed a records review on the claimant. He did not examine the claimant nor did he review the claimant’s testimony. (Findings, ¶16). Dr. Lange opined that the claimant’s vertebral artery dissection injury and brain stem stroke were not caused by his work as a truck driver. The trial commissioner concluded that the claimant’s injury was work-related and ordered the respondents to pay compensation under Chapter 568, including temporary total disability benefits from June 12, 1996 to November 1996. The respondents appealed that decision to this board.

The respondents argue that the commissioner’s findings of fact are unsupported and contradicted by the claimant’s medical history and the claimant’s own testimony. It is well settled that this board does not retry the facts because the power to determine the facts rests with the trial commissioner as the trier of fact. Fair v. People’s Savings Bank, 207 Conn. 535, 542 A.2d. 1118 (1988). 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).

In the case at bar the trial commissioner weighed the testimony of Dr. Conway, Dr. Lange, and the claimant, along with the claimant’s medical records. He found most persuasive Dr. Conway’s testimony that a causal relationship existed between the claimant’s work activities and his vertebral artery dissection injury and brain stem stroke. We are not in a position to reassess this evidence on appeal and disturb the trier’s finding. See Keenan v. Union Camp Corp., 49 Conn. App. 280 (1998); Rogers v. Laidlaw Transit, 45 Conn. App. 204 (1997).

The respondents further argue the trial commissioner’s finding that the repetitive nature of the claimant’s work activities was sufficient to cause a vertebral artery dissection is contradictory to medical literature, which states that a significant trauma is necessary to cause a vertebral artery dissection. Dr. Lange testified in his July 7, 1997 deposition that he relied on five articles (Respondents’ Exhibits 1-5) in formulating his opinion with respect to the causation of the claimant’s injury. (Transcript, pp. 11-16). Dr. Lange was of the opinion that the claimant’s injuries were not caused by the claimant’s work as a truck driver. (Findings, ¶ 17). However, a trial commissioner is “entitled to weigh the credibility of all medical opinions, uncontradicted or not, in reaching a decision.” Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). Here, the trial commissioner explicitly stated that he did not find the medical evidence in Dr. Lange’s opinion persuasive. We cannot disturb this finding. See Webb, supra.

Finally, the respondents argue that the trial commissioner erred in denying their Motion to Correct. On review of the denial of a motion to correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A material fact is one that would alter the legal conclusion of the trial commissioner. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). As none of the corrections proposed by the respondents would change the result of this case, we find no error in the denial of the motion to correct.

The trial commissioner’s decision is affirmed.

Commissioners Michael S. Miles and Stephen B. Delaney concur.

Workers’ Compensation Commission

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