CASE NO. 3862 CRB-01-98-07
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 3, 1999
STATE OF CONNECTICUT DEPARTMENT OF CORRECTIONS
The claimant was represented by Brian T. Mahon, Esq. (and James B. Streeto, Esq. who is no longer with the firm), Weigand, Mahon & Adelman, 636 Broad Street, Meriden, CT 06450.
The respondents were represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the July 15, 1998 Finding and Award of the Commissioner acting for the First District was heard February 26, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the July 15, 1998 Finding and Award of the Commissioner acting for the First District. In that decision the trial commissioner concluded that the claimant’s heart condition which required surgical procedures in 1993 and 1994 was a direct result of the claimant’s accepted heart condition. Additionally, the trial commissioner concluded that the avascular necrosis in both of the claimant’s hips was compensable because it was caused by steroids which were needed after the compensable heart surgery. In support of its appeal, the respondent contends (1) that the claimant’s heart condition subsequent to 1992 was not caused by his prior heart attack, but rather was caused by his personal lifestyle; (2) that the record does not support the trial commissioner’s determination that the claimant’s hip condition was causally related to his compensable injury; (3) that the record does not support the award of a 20% permanent partial disability of the left leg; and (4) that the trial commissioner did not make sufficient findings of fact to support an award of temporary partial disability and temporary total disability benefits commencing April 18, 1995.
The trial commissioner found the following relevant facts. On December 11, 1987, the claimant suffered a heart attack for which he filed a heart and hypertension claim against the respondent employer (State of Connecticut). The employer issued a voluntary agreement accepting the claim and agreeing to a thirty percent permanent partial disability of the heart with a maximum medical improvement date of November 11, 1988. The claimant had a history of cardiovascular disease in his family, and at the time of his initial heart attack he was overweight, had high blood serum cholesterol readings, and smoked one to two packs of cigarettes a day. After his initial heart attack, the claimant improved his eating habits, tried to reduce his smoking, and ultimately stopped smoking in August of 1993. In 1992, the claimant developed further coronary-cardiac difficulties which eventually resulted in coronary bypass surgery on January 18, 1994. In late 1993 the claimant underwent a cardiac catheterization which confirmed that his coronary artery disease had deteriorated since 1988 and continued to worsen.
The trial commissioner found that the claimant’s initial heart attack was due to coronary arterial disease and that his subsequent symptoms and surgical procedures were also due to his coronary arterial disease. (Finding ¶ 10 and 11). In connection with his January 18, 1994 bypass surgery, the claimant underwent a saphenectomy (vein removal from the leg to be used in the chest). As a result, due to an inflammatory reaction in his leg, the claimant was prescribed steroids. The claimant was subsequently diagnosed with avascular necrosis in his right hip which required hip replacement surgery. Dr. Barber opined that the claimant’s avascular necrosis was caused by the steroids.
In support of its appeal, the respondent seeks to retry the facts of this case, which this board may not do. When reviewing a trial commissioner’s decision, it is well established that this board “is obligated to hear the appeal on the record and not retry the facts .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999) (quotations omitted). The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. O’Reilly, supra; 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. 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 concluded that the claimant’s surgical procedures in 1993 and 1994 were a direct result of the claimant’s accepted heart condition. This conclusion was based upon the trial commissioner’s assessment of the evidence and is fully supported by the record, including the medical report of Dr. Lawrence dated October 29, 1996. (Claimant’s Exh. A, § K). Moreover, Dr. Silverstein, a cardiologist, opined that even if the claimant had followed all of his physician’s recommendations following his initial heart attack, this may not have prevented his subsequent need for surgeries. (10/21/97 Depo. at 23). The trial commissioner chose not to rely upon the employer’s contention that the claimant’s surgeries were caused by his personal lifestyle, and indeed, the trial commissioner found this argument to be “conjectural in nature and not persuasive.” It was within the authority of the trial commissioner, as the finder of fact, 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 further support of its appeal, the employer seeks to retry the issue of the causation of the claimant’s hip condition.1 Specifically, the employer contends that Dr. Barber, who opined that the claimant’s hip condition was caused by his steroid use, incorrectly believed that the claimant had been taking “high dose” steroids rather than “low dose” steroids. The employer points to no evidence in the record which indicates whether the claimant was on either low dose or high dose steroids, nor has the employer provided a medical opinion indicating that such a difference would be relevant. Moreover, the employer did not seek to depose Dr. Barber. As we have stated above, the employer may not now retry the facts of the case. We conclude that it was within the discretion of the trial commissioner to rely upon the opinion of Dr. Barber regarding the causation of the claimant’s hip condition.
Next, the employer contends that the record does not support the award of a twenty percent permanent partial disability of the left leg because the claimant had previously received a permanent partial disability award for a knee injury. The record indicates that the trial commissioner took administrative notice of a voluntary agreement approved on April 12, 1989 which provided for a 16.25% permanent partial disability of the left knee. (12/17/97 TR. at p. 8). In the instant case, the trial commissioner awarded a twenty percent permanent partial disability of the left hip. It is not clear whether the trial commissioner considered the prior award for the left knee, and because the knee and the hip are both considered to be the “leg” for purposes of permanency, such an oversight may cause a double recovery of permanency for the leg. Accordingly, we will remand this issue to the trial commissioner.
Finally, we will address the employer’s contention that the trial commissioner did not make sufficient findings of fact to support an award of temporary partial disability and temporary total disability benefits commencing April 18, 1995. The employer contends that there “were absolutely no underlying facts found to support such an order.” (Employer’s Brief at p. 10). To the contrary, the trial commissioner found the claimant to be totally disabled from August 8, 1995 through January 2, 1996 based upon the medical report of Dr. Seidman, a treating physician. (Finding ¶ 20). The trial commissioner found that following the hip replacement surgery on January 2, 1996 through August 19, 1996, the date he reached maximum medical improvement, the claimant was temporarily totally disabled and/or temporarily partially disabled based upon the medical reports of Dr. Lawrence. (Finding ¶ 21). The trial commissioner’s determination is supported by other medical reports in the record, including reports by Dr. Underhill (Claimant’s. Exh. A, § D) and by the claimant’s testimony. (8/12/97 TR. at 42-43). We will not disturb a trial commissioner’s finding “where there is evidence in the record to support it .” O’Reilly, supra, at 818.
This matter is remanded regarding the issue of permanent partial disability of the leg; in all other respects the trial commissioner’s decision is affirmed.
Commissioners Angelo L. dos Santos and John A. Mastropietro concur.
1 We note that the employer contends that the trial commissioner “erred by not allowing the state to introduce further evidence on the causative connection between claimant’s avascular necrosis of his hips in 1995 and the steroid treatment .” (Employer’s Brief at p. 11). The employer was provided with a full and fair opportunity to present its defense during the formal hearing in this matter which took place on three separate dates. The employer does not contend that it requested a continuance. Certainly, we would not permit the employer to defend its case in a piecemeal matter as it is requesting in its appeal. BACK TO TEXT