CASE NO. 3888 CRB-07-98-09
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 31, 1999
MED-CENTER HOME HEALTH CARE
CONNECTICUT HOSPITAL ASSOCIATION WORKERS’ COMPENSATION TRUST
The claimant was represented by Barry S. Moller, Esq., Cramer & Anderson, 46 West Street, P.O. Box 278, Litchfield, CT 06759-0278.
The respondents were represented by Neil J. Ambrose, Esq., Letizia, Ambrose & Cohen, One Church Street, New Haven, CT 06510.
This Petition for Review from the August 24, 1998 Finding and Award of the Commissioner acting for the Seventh District was heard April 30, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer have petitioned for review from the August 24, 1998 Finding and Award of the Commissioner acting for the Seventh District. In that decision the trial commissioner found that the claimant sustained a compensable injury to her back while wheeling a patient in a wheelchair on a steep driveway. In addition, the trial commissioner concluded that the respondents had unreasonably contested liability and thus awarded attorney’s fees pursuant to § 31-300. In support of their appeal, the respondents contend that the record does not support a finding of causation with reasonable medical probability, and further contend that the record does not support the trial commissioner’s determination of unreasonable contest.
The trial commissioner found the following relevant facts. The claimant was employed as a home health care aide, and was assigned to work at the home of a paraplegic commencing sometime in October or November of 1994. This patient was confined to a wheelchair, and the claimant had to wheel him down his steep driveway so that he could be picked up by a specialized bus. On a date between January 2 and January 8, 19951, the claimant was wheeling the patient down his driveway when it became necessary for her to brake the forward motion of the wheelchair with her hands, feet, and body due to the brakes on the wheelchair being inadequate to the task. The claimant experienced a “snapping” of her right foot, causing pain to her right foot, knee, hip, and back. The claimant treated with Dr. Roseff, her family doctor, who opined that the claimant’s back injury appeared to stem from pushing the patient in the wheelchair. After an MRI was performed in February of 1995, Dr. Roseff confirmed his diagnosis of disc herniations at L4-5 and L5-S1 and confirmed the causal connection with the claimant’s employment.
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). As we have often stated, this board does not retry the facts because the power and duty of determining the facts rests on the 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). Moreover, a trial commissioner has the “right to reject testimony even if seemingly uncontradicted.” Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 235, 1000 CRD-5-90-4 (Oct. 30, 1991); see also Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996).
In support of their appeal, the respondents contend that the evidence in the record does not support the trial commissioner’s conclusion that the claimant’s back condition was caused by her employment. Specifically, the respondents contend that the claimant gave contradictory histories regarding her injury, and thus her testimony was not reliable. The trial commissioner found that the claimant maintained that her injury occurred within the first several days ofJanuary 1995, despite “extensive examination and cross examination and the introduction of several exhibits which elicited various dates as the date of injury .” (Finding ¶ 11). Moreover, the trial commissioner found that the claimant “thought her problem was with her foot and not with her back, and that her foot problem was causing pain to her back.” (Finding ¶ 12). Accordingly, we find no error, as it was within the discretion of the trial commissioner to assess the credibility of the witnesses, including the claimant. Webb, supra.
The respondents further contend that the claimant failed to report her injury to the employer in a timely manner even though she had several opportunities to do so. This contention may be explained by the finding that the claimant “thought her problem was with her foot and not with her back, and that her foot problem was causing pain to her back.” (Finding ¶ 12). The respondents further argue that the trial commissioner’s finding that the claimant reported her injury to Laurie Ruckel is not supported by the evidence. We disagree, as that finding is a reasonable inference based upon both the Form 30C (Respondents’ Exh. 1) which has a handwritten note stating that the date of injury is January 1, 1995 “per Laurie” and the testimony of Donna Flagg, director of home health care aides for the respondent employer. (3/19/97 TR. at 76).
Next, the respondents contend that the opinion of Dr. Roseff that the claimant’s back condition is “causally related to her employment” (Respondents’ Brief at 7, citing Claimant’s Exh. D) is legally insufficient because he does not provide a specific date of injury, and thus his reference to “her employment” could refer to a previous employer. We find no merit to this argument, as Dr. Roseff stated in his report of June 19, 1995 the following: “Let me reiterate that I did see this patient in 1991 for strained neck and lumbar spine. X-ray done at that time revealed an accentuated lumbar lordosis. There was no back complaint between then and her current presentation in January of 1995.” (Claimant’s Exh. D; emphasis added). Moreover, Dr. Roseff specifically opined that the claimant’s back condition “ appears to stem from pushing a wheelchairbound client beginning in November 1994.” (Finding ¶ 13).
“The standard in Connecticut is well settled; expert opinions must be based on reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation.” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817 (1999). However, there “need not be any magical words” and as “long as it is clear that the expert’s opinion was based on more than mere conjecture, the entire substance of the expert’s testimony should be examined.” Id. In the instant case, Dr. Roseff provided an opinion regarding causation based on reasonable medical probabilities rather than mere speculation or conjecture in his report of June 19, 1995. We conclude that the evidence, including the opinion of Dr. Roseff, supports the trial commissioner’s conclusion that the claimant’s back condition was caused by her employment.
We thus find no need to discuss the respondents’ argument that the trial commissioner erroneously relied upon the opinion of Dr. D’Angelo, who performed an examination of the claimant at the request of a trial commissioner. Dr. D’Angelo concluded that “pushing the client in a wheelchair is the likely cause of her back complaints and her disc herniation.” (Finding ¶ 17). The trial commissioner noted that the respondents’ attorney wrote a letter to Dr. D’Angelo “putting forth facts indicating inconsistent and incongruous statements and patterns involving Claimant’s injury and its history.” (Finding ¶ 18). We have previously addressed the issue of a respondent sending an ex parte letter to a physician conducting a trial commissioner’s examination in Trimachi v. State of Conn./ Workers’ Compensation Commission, 3749 CRB-01-97-12 (August 25, 1999). In that case, we agreed with the claimant that the letter constituted an inappropriate ex parte communication. Similarly, it appears that the letter here was sent ex parte with the purpose to influence the physician’s opinion, and as such the letter is clearly inappropriate.
Finally, we will address the respondents’ contention that the trial commissioner improperly concluded that their contest of the claim constituted unreasonable contest pursuant to § 31-300. In support of their appeal, the respondents contend that it was not unreasonable to contest liability in the instant case. We have repeatedly held that whether to award attorney’s fees and interest for unreasonable delay and/or unreasonable contest pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner. Ruiz-Dugue v. Greenwich Hospital, 16 Conn. Workers’ Comp. Rev. Op. 208, 3267 CRB-7-96-2 (May 22, 1997); Wheeler v. Bender Plumbing Supply of Waterbury, Inc., 10 Conn. Workers’ Comp. Rev. Op. 140, 1186 CRD-5-91-3 (June 5, 1992).
In the instant case, an independent review of the medical records was conducted by Dr. Glass at the request of the respondents, and Dr. Glass concluded that the cause of the claimant’s back condition was her weight condition. Moreover, the trial commissioner noted that the record contained various dates as the date of injury, and further noted that the respondents alleged that the claimant provided inconsistent statements regarding the history of her injury. (Findings ¶ 8 and 18). Although we recognize the wide discretion accorded to trial commissioners in determining unreasonable contest, here we must agree with the respondents that they had a reasonable basis for contesting the claimant’s claim, particularly in light of the independent medical examiner’s opinion that the injury was not work related.
Accordingly, we find that the trial commissioner’s award of attorney’s fees for unreasonable contest is not supported by the record and must be reversed.
The trial commissioner’s decision is reversed as to attorney’s fees only.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.
1 The actual date of the incident was discussed at length during the formal hearing. (Finding ¶ 8). BACK TO TEXT