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Dallaire v. Paper Delivery, Inc.

CASE NO. 3951 CRB-05-98-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 19, 2000

RICHARD DALLAIRE

CLAIMANT-APPELLEE

v.

PAPER DELIVERY, INC.

EMPLOYER

and

CRUM & FORSTER

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Charles Senich, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondent was represented by Dominick Statile, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the December 22, 1998 Finding of the Commissioner acting for the Fifth District was heard August 6, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondents have petitioned for review from the December 22, 1998 Finding of the Commissioner acting for the Fifth District. They argue on appeal that the trier erred by finding that a causal connection existed between the claimant’s 1995 compensable injury and certain symptoms that began to appear later. We affirm the trial commissioner’s decision.

The claimant sustained an injury that arose out of and in the course of his employment on February 6, 1995, when he slipped and fell on ice, striking his back—and the back of his head—against the surface of a steel dock. This injury was accepted as compensable, and the respondent insurer has paid related benefits and medical treatment. Within several months of the incident, the claimant began to allege that his head trauma (which left him with a concussion) was causing him to suffer migraines, weight loss, and a reduction in his olfactory and gustatory senses.1 The respondents contend that these symptoms preexisted his 1995 injury, and deny the existence of any objective medical evidence to show that these ailments were induced or aggravated by that mishap. The trial commissioner disagreed, and ordered the respondents to pay for the claimant’s continuing medical care. The respondents have appealed that ruling to this board.

The appellants contend that the trier’s holding relies wholly upon the testimony of the claimant, who stated that he had never experienced headaches before his 1995 injury, and related the same medical history to the doctors who treated him. The respondents maintain that the physicians’ reports contain no tangible evidence of migraine headaches; instead, their opinions were derived solely from the information provided by the claimant. However, the record shows that the claimant was treated for headaches as recently as March 1993. It follows, according to the respondents, that the claimant’s testimony must be discredited, notwithstanding the axiomatic principle that the commissioner is ultimately charged with deciding whether or not to rely upon any given testimony in a workers’ compensation case. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). If the claimant’s history were discounted, the foundation of his physicians’ reports would crumble as well, and they would lack the “reasonable degree of medical probability” sufficient to establish the requisite causal relationship between the claimant’s symptoms and his compensable injury. See Ivan-Marrotte v. State of Connecticut, 3599 CRB-2-97-4 (July 28, 1998).

The commissioner ’s findings demonstrate that he was conscious of the manner in which the claimant presented his medical history, and the degree to which Drs. Hornblow and Finkelstein relied upon that history in assessing the claimant’s condition. Dr. Hornblow stated that the claimant’s headaches sounded like they had a “vaguely migrainous character. Based on what [the claimant] told me and the records I have available for review, I would have to assume that there is a relationship between these headaches and his injury in February, 1995.” Findings, ¶ 10, quoting Claimant’s Exhibit D. Likewise, the commissioner observed that “[t]he history given to Dr. Finkelstein by the claimant at the time of his examination indicated that the claimant denied any frequent recurrent headaches prior to the accident of February 26, 1995. . . . [He] testified that his examination of the claimant was normal and that there were no objective findings and that his diagnosis of migraine headaches [was] based on what the claimant told him rather than any objective data.” Findings, ¶¶ 15-16.

The trier was also aware that the claimant, despite his testimony, had sought treatment for post-traumatic headache syndrome following a December 1990 automobile accident, and had continued to mention these headaches during visits to his family doctor and an orthopedic physician from 1991 through March 1993. The commissioner still thought it important, however, that a “significant period of time had elapsed without treatment” prior to the claimant’s compensable 1995 injury. See January 8, 1999 Ruling on Motion to Correct Finding. He recited the claimant’s February 19, 1998 testimony that he had never experienced any headaches like the ones that he experienced subsequent to the February 26, 1995 fall; Findings, ¶ 17 (emphasis added); and observed that the claimant drew a distinction between the “occasional” headaches he might have suffered in the past, and the chronic headaches that he was experiencing now. Findings, ¶ 19.

It was reasonable for the trier of fact to recognize and accept that distinction in evaluating the claimant’s case. The reports from Drs. Rubin and Hebert, with whom the claimant treated in the early 1990’s, do not necessarily command a finding that the claimant’s current symptoms existed at that time. The trier has clearly considered and rejected the notion that the claimant’s treatment for headaches following his 1991 car accident rendered suspect the medical history he provided to Drs. Finkelstein and Hornblow, along with their subsequent diagnostic opinions. On review, this board may not second-guess this assessment of credibility. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). The trier’s impressions regarding the evidence must stand.

The commissioner thus decided that the claimant’s description of his symptoms was reliable enough to elicit an accurate analysis from the doctors who examined him. As doctors frequently rely upon the histories provided by patients in diagnosing their maladies, the trier was not required to reject the medical opinions in this case on the ground that they were too speculative or conjectural due to a lack of objectively identifiable trauma. Evans v. Shelton, 16 Conn. Workers’ Comp. Rev. Op. 155, 161, 3108 CRB-4-95-6 (May 2, 1997). In looking at Dr. Finkelstein’s report, for example, there is no uncertainty expressed by the doctor in relating the claimant’s migraines and related ailments to his February 6, 1995 fall, despite the lack of measurable symptoms. Claimant’s Exhibit E. Based on the claimant’s history, Dr. Finkelstein opined that his compensable injury was causing his headaches. The trier has already determined that the medical history provided by the claimant was sufficiently accurate. Just as we may not disturb his decision regarding that fact, we may not overturn his discretionary choice to credit the testimony of the claimant’s expert witnesses. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818-19 (1999).

Ultimately, this board must defer to the trial commissioner’s decision, if possible, when it reviews his factual findings and legal conclusions. Six v. Thomas O’Connor & Co., 235 Conn. 790, 801 (1996). As the trier’s findings are reasonably supported by the evidence, and his legal conclusion is sustainable by the underlying facts, we may not disturb his award. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Weiss v. Chesebrough-Ponds USA Co., 51 Conn. App. 106, 110 (1998). Accordingly, we affirm the decision of the trial commissioner in this case.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 His senses of smell and taste, respectively. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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