Pilewski v. Danbury Auto Park

The claimant was represented by Scott McCarthy, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

The respondents were represented by Maureen Driscoll, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.

This Petition for Review from the October 7, 1998 Finding and Dismissal of the Commissioner acting for the Seventh District was heard March 26, 1999 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Stephen B. Delaney and John A. Mastropietro.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The claimant has petitioned for review from the October 7, 1998 Finding and Dismissal of the Commissioner acting for the Seventh District. She argues on appeal that the trier erred by denying her Motion to Correct, and by dismissing her claim for four months of total disability benefits. We affirm the trial commissioner’s decision.

The claimant sustained a compensable injury on September 7, 1995, when she tripped over a rug at her place of employment and twisted her back while falling. At the time, she was a full-time employee of the respondent Danbury Auto Park. Prior to that date, she had been treating with Dr. Manlapaz, a neurosurgeon, for neck and back pain. She claims that the fall worsened her pre-existing back condition to the point where she required surgery, and could no longer work.

The trial commissioner disagreed. Though the claimant testified that she had not suffered leg pain prior to her injury, the trier found that the surgery Dr. Manlapaz performed on her back on February 10, 1996 had been recommended by the doctor prior to her September 7, 1995 injury. Findings, ¶ 24. In April 1994, at the outset of his treatment of the claimant, Dr. Manlapaz formed the opinion that the claimant was suffering from degenerative disc disease of the neck and back. Indeed, the history he took on September 11, 1995 noted that the claimant was experiencing the same problem that she had displayed prior to the September 7, 1995 fall. Findings, ¶ 32. The doctor described no change in the structure of the claimant’s neck or back from that incident. Findings, ¶¶ 33, 35. He also stated that the claimant had told him in the summer of 1995 that she wanted to have surgery in November, but he had been unable to obtain authorization from an insurance company to go forward with the operation. Findings, ¶¶ 41, 42. The trier specifically noted that Dr. Manlapaz described the claimant’s lifting restrictions prior to the accident as being identical to those she had afterward. Findings, ¶ 49. This conflicted with the testimony of the claimant, who alleged that she was subject to no restrictions at all prior to the injury. Findings, ¶ 69.

The trial commissioner ruled that the claimant’s testimony was not credible, as it contradicted the medical records and testimony of Dr. Manlapaz. Findings, ¶ A. He cited Dr. Manlapaz’ original opinion stating that “although it was difficult to pinpoint the cause . . . in his opinion the need for surgery was related to [a] 1991 motor vehicle accident.” Findings, ¶ C. He ruled that the claimant had not sustained her burden of proving a causal relationship between the condition of her lumbar spine and her need for surgery, as her reasons for delaying surgery until February 16, 1996 were financial and personal in nature. Findings, ¶ F, G. He dismissed her claim for payment of the lumbar fusion performed by Dr. Manlapaz and her ensuing disability claim, from which decision the claimant has appealed.

The claimant contends in her brief that the trier failed to address whether she was totally disabled from October 2, 1995 until February 16, 19961, the date preceding her surgery, as a result of her September 7, 1995 injury. She requests that the case be remanded for such a determination. It is well-settled that our workers’ compensation law charges the claimant with the burden of proving the relationship between a compensable injury and any resultant disability. Aquino v. Clairol, Inc., 3802 CRB-7-98-4 (March 3, 1999). With respect to the instant matter, we believe that the trier’s denial of the claimant’s Motion to Correct also operated as a dismissal of her claim for total disability.

By denying her request to amend Finding #31, which states that the claimant’s work restriction lasted until the end of September, by adding to it a finding that the claimant was thereafter “taken out of work and rendered temporarily totally disabled as of October 2, 1998[sic] by Dr. Manlapaz,” the trier was indicating that he did not find that testimony persuasive. It is, of course, the province of the trial commissioner to determine the credibility of the witnesses and testimony, including medical evidence, and it is also within his authority to reject evidence that is not expressly contradicted. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Given that the trier found that the claimant’s need for surgery was unrelated to her compensable injury, it was quite reasonable for him to find that any disability she experienced in the months leading up to that surgery was also the product of her pre-existing condition. This board may not vitiate the commissioner’s fact-finding powers by retrying the case on review. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). The trier’s dismissal of the instant claim is reasonably based upon visible discrepancies in the record, and we perceive no error in his factual findings or legal conclusions. Fair, supra, 541.

The trial commissioner’s decision is hereby affirmed.

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

1 The claimant actually used the date “February 15, 1995” in her Motion to Correct and her brief, but we will take it upon ourselves to correct this obvious scrivener’s error. BACK TO TEXT