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Dicocco v. E.I. DuPont Denemours & Co.

CASE NO. 4099 CRB-04-99-08

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 29, 2000

ROSE DICOCCO

CLAIMANT-APPELLANT

v.

E.I. DUPONT DENEMOURS & CO.

EMPLOYER

APPEARANCES:

The claimant was represented by Christopher Goulden, Esq., Law Offices of Frederick D. Paoletti, Jr., 3301 Main Street, Bridgeport, CT 06606.

The respondents were represented by Polly L. Orenstein, Esq., 2750 Dixwell Avenue, P.O. Box 187289, Hamden, CT 06518.

This Petition for Review from the July 28, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District was heard May 19, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Jesse M. Frankl.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the July 28, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District. In that decision the trial commissioner concluded that the medical evidence did not support the claimant’s contention that she sustained a compensable injury to her right arm and shoulder on February 20, 1996. Specifically, the trial commissioner found that no physician opined with reasonable medical certainty that the claimant’s injury was work related. In support of her appeal, the claimant contends that the trial commissioner’s finding that she sustained an injury on February 20, 1996 is inconsistent with his conclusion that she did not sustain a compensable injury on February 20, 1996. We find no error.

We will first address the claimant’s Motion to Submit Additional Evidence, in which she seeks to obtain and present a medical report which would establish causation. The claimant contends that the claimant’s former counsel erred at the trial level by failing to provide such evidence. This board has “repeatedly held that it is the claimant’s burden to recognize and resolve any inconsistencies in the evidence at the formal hearing, whether or not those discrepancies seemed significant to the claimant at the time of the hearing.” Liano v. Bridgeport, 3299 CRB-4-96-2 (March 25, 1997), citing Holle v. The William Backus Hospital, 14 Conn. Workers’ Comp. Rev. Op. 169, 2039 CRB-2-94-4 (May 10, 1995) and Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-209, 1289 CRD-6-91-9 (Dec. 2, 1992). “This includes the duty of obtaining the necessary medical evidence to meet one’s burden of proof at the formal hearing.” Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). We thus deny the claimant’s Motion to Submit Additional Evidence.

In the instant case, the trial commissioner found the following relevant facts. On February 20, 1996, the claimant was employed as a machine wirer with the respondent employer. On that date, the claimant “suffered an injury to her right arm and shoulder when a door weighing between five and 10 pounds and situated on a diagnostic device she was wiring, fell open and, in her reaction to catch the door, caused her an injury.” Finding ¶ 2. The claimant first sought medical attention on July 17, 1996. The claimant saw three physicians: Dr. Boone, Dr. Gargano, and Dr. Mangieri. None of the physicians seen by the claimant wrote a report establishing the causal connection, within a reasonable degree of medical probability, of the condition of her right arm and shoulder to the incident which occurred on February 20, 1996. The trial commissioner thus concluded that the claimant failed to make a prima facie case of compensability.

We will now address the merits of the claimant’s appeal. Initially, we note that the claimant contends in her appeal that “The compensability of this claim was contested by the Respondents on the sole basis that the claim was not brought within the one (1) year period prescribed by statute.” (Claimant’s Brief at p. 1). To the contrary, the transcript of the formal hearing indicates that the respondents contested the claim on the basis of causation.1 Moreover, the trial commissioner stated the issues as “the statute of nonclaim and/or the question of whether the injury came out of the course of employment.” (11/23/98 TR. at 2).

Whether the trier erred in finding that the claimant’s injury arose out of and in the course of his employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). In order to establish causation, we have consistently required a standard of “reasonable medical probability.” Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 2, 936 CRD-6-89-11 (March 19, 1991). “Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation.” Hoffman v. Platinum Vacations of New England, 8 Conn. Workers’ Comp. Rev. Op. 174,176, 867 CRD-7-89-5 (Nov. 30, 1990) (citations omitted).

The burden of proving a causal relationship between a claimant’s employment and her injuries is on the claimant, and “can only be met by competent medical evidence that established such a connection within a reasonable degree of medical probability.” Kincaid-Ross v. State of Connecticut, 3350 CRB-1-96-5 (Dec. 4, 1997), citing Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). “Although the words ‘reasonably medically probable’ need not be recited verbatim in the evidence, the substance of the medical opinion of at least one doctor must reach that degree of strength.” Kincaid-Ross, supra, citing Smith v. UTC/Pratt & Whitney, 3134 CRB-3-95-6 (April 4, 1997).

In the instant case, the trial commissioner concluded that the claimant did not meet her burden of proof regarding her claim that her right arm and shoulder condition was caused by the February 20, 1996 incident. This conclusion is supported by the record, and thus may not be retried by this board. See Fair, supra. Specifically, the record does not include an opinion from a physician which states with reasonable medical probability that the claimant’s right arm and shoulder condition was caused by the incident at work. Moreover, we note that the trial commissioner found that the claimant did not seek medical treatment until approximately five months following the incident.

The trial commissioner’s decision is affirmed.

Commissioners George A. Waldron and Jesse M. Frankl concur.

1 In her opening statement, respondents’ counsel stated, “I’m not aware of any medical evidence indicating that this was causally related to her employment.” 11/23/98 TR. at 4. BACK TO TEXT

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