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Allen v. Griffin Health Services Corp.

CASE NO. 3768 CRB-04-98-02

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 27, 1999

ALBERT ALLEN

CLAIMANT-APPELLANT

v.

GRIFFIN HEALTH SERVICES CORP.

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Foster M. Young, Esq. and Gerald Davino, Esq., Yudkin & Young, 215 Coram Avenue, P. O. Box 426, Shelton, CT 06484-0426.

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

This Petition for Review from the January 27, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District was heard October 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 27, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District. He argues on appeal that the trier erred by dismissing his claim for compensation. We affirm the trial commissioner’s decision.

The trier found that the claimant alleged a compensable injury to his low back on a Friday in mid-September 1996 during his employment with Griffin Hospital. He claims to have felt pain in his low back while assisting a fellow employee, Rose Steeves, in removing laundry from a bin. His job generally required significant bending and lifting. The claimant, who was familiar with the procedure for filing injury reports with his employer, did not report an injury at that time. On October 21, 1996, the claimant was home feeding his cats when his back gave out. He visited the emergency room at Griffin Hospital, obtained medication, and went home. Later that evening, he returned to the emergency room, this time in an ambulance.

The claimant’s general practitioner maintains that the claimant’s injury was work-related, with the incident at home being trivial. The claimant also provided a history of a work injury to his neurosurgeon, Dr. Mastroianni, who first saw him in December 1996 after an MRI revealed a herniated disc in his low back. However, the claimant first filed an official accident report on October 21, 1996, noting a same-day injury that occurred when he could not straighten up after bending over to feed his pets. He saw Dr. Piotrowska on October 31, 1996, whose intake notes reflected that the claimant’s injury had occurred at home. Dr. Piotrowska reported that the claimant returned to her in January 1997, and he was very upset that her initial medical report did not state that his injury occurred while emptying a laundry bin at work in mid-September 1996.

The claimant maintained that he had no prior back problems. The respondents offered documentation that the claimant had received medical treatment at Griffin Hospital emergency room before 1996. Their independent medical examiner, Dr. Brown, observed that the claimant, at 6’1”, weighed over 300 pounds, and noted that his weight was a factor in creating the pre-existing condition that led to his herniated disc. Dr. Brown related the herniation directly to the October 21, 1996 incident. Rose Steeves testified that her only recollection of an injury in September 1996 was when she asked the claimant to help her get mops out of a bin and he said, “Oh, my back,” whereupon she replied “Oh, get out of here, I’ll do it myself.”

The trier concluded that the claimant did not establish by a preponderance of credible evidence that he sustained a traumatic injury to his low back at work in mid-September 1996, nor did he establish any connection between the repetitive nature of his work at the hospital and his need for low back surgery. He found that the low back disc herniation was due to his pre-existing weight condition and to the bending incident at home while feeding his cats. Thus, he dismissed the claim, which ruling has been appealed by the claimant.

As the claimant himself notes in his brief, the trial commissioner is the fact-finder in workers’ compensation cases. This entitles him to determine the weight to be accorded the evidence presented by both parties, and the credibility of the testimony offered by lay and expert witnesses, even if such evidence seems to be uncontradicted. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). This board may not alter the findings unless they are unsupported by the evidence, or unless they fail to include undisputed material facts. Pallotto, supra. This board does not retry the facts, and will not disturb the legal conclusions that the trier has drawn from them unless they represent an incorrect application of the law to the facts or an inference illegally or unreasonably drawn from them. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539-41 (1988).

The burden is always upon the claimant to prove that a causal link exists between his injury and his employment. Pallotto, supra. The trier is entitled to disregard the medical evidence offered by the claimant if he does not find it sufficiently persuasive. Id.; Jusiewicz, supra. In the instant case, the trier was certainly entitled to draw inferences adverse to the claimant from his failure to mention a September 1996 work injury in his October 21, 1996 accident report and during his visit to Dr. Piotrowska. We cannot override his assessment of credibility in that regard. Moreover, the claimant did not file a Motion to Correct the findings, which prevents our review of the evidence supporting the facts found by the commissioner. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). As the trier’s legal conclusions are not inconsistent with the factual findings, we must affirm his decision. Fair, supra; Pallotto, supra.

The trial commissioner’s decision is hereby affirmed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

Workers’ Compensation Commission

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