Canevari v. C.R. Gibson Co.

The claimant was represented by James P. Driscoll, Esq., 457 Main Street, Suite 3C, Danbury, CT 06811.

The respondents were represented by Kristie L. Diresta, Esq., Sizemore Law Offices, Crossroads Corporate Park, 6 Devine Street, First Floor, North Haven, CT 06473.

This Petition for Review from the April 28, 2000 Finding and Award of the Commissioner acting for the Seventh District was heard January 12, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the April 28, 2000 Finding and Award of the Commissioner acting for the Seventh District. They argue on appeal that the trier erroneously found that the claimant had satisfied her burden of proving a causal connection between her employment and her allegedly compensable back injury. We affirm the trial commissioner’s decision.

The claimant worked for the respondent C. R. Gibson as a posting clerk on February 12, 1997. During her employment on that date, her computer stopped functioning. Rather than remain idle, she began assisting two co-workers who were moving boxes of old check stubs into storage. After carrying several of the boxes, the claimant experienced pain, but assumed that it would resolve itself. Thus, she did not report an injury, though she had difficulty sitting in her chair again when the computers came back on-line. Over the course of the next few weeks, her pain continued. The claimant obtained medical attention for her problem with Dr. Svogun on March 7, 1997.

Dr. Svogun diagnosed a left lumbar strain and pronounced the claimant totally disabled through March 15, 1997. He referred the claimant to Dr. Stovell, who identified either an acute herniated disc at L5-S1, or an L4-5 herniation with degenerative disc changes at L5-S1. He recommended surgery, but the claimant opted for conservative treatment. Dr. Stovell then referred the claimant to Dr. Lagios, a neurosurgeon, who found nerve root damage and also recommended surgery. The claimant did not specifically attempt to relate her back condition to the workplace box-lifting incident during any of these visits. Having apparently experienced no other incident or trauma, however, the claimant decided that the box-lifting incident must have been the cause of her injury, and officially reported it to her employer on April 4, 1997.

The claimant testified that she had mentioned lifting heavy boxes at work to Dr. Svogun, though his intake form did not corroborate this assertion, as it was a “fill-in-the-blank” type that had no space dedicated to the entry of a history. Claimant’s Exhibit A. The history taken by Dr. Stovell on March 10, 1997 stated that the claimant had noted aching in her back and leg a month earlier. Claimant’s Exhibit B. Dr. Lagios’ report reflected the claimant’s recollection that, shortly before she began experiencing symptoms, she had been moving boxes of cancelled checks at work, some of which were heavy, though not extremely heavy. Claimant’s Exhibit C. Though no treating physician offered an opinion specifically stating that the lifting incident was the cause of the claimant’s back injury within a reasonable degree of medical probability, the trier found the testimony of the claimant to be credible and convincing, in the process resolving several potential evidentiary inconsistencies in her favor. He then reached the conclusion that her injury arose out of and in the course of her employment, which ruling the respondents have appealed.

The respondents request that this board overturn the trier’s decision on the ground that the claimant’s evidence is legally insufficient to satisfy her burden of proving that her injury was compensable. We begin by delineating the parameters of our authority on review. A trial commissioner has plenary factfinding authority in a workers’ compensation case, which vests him with a great deal of latitude in evaluating the credibility of evidence. Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000). He has the sole authority to decide whether or not the evidence and testimony offered by the parties is persuasive, even if an item or a statement appears to be uncontradicted. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Just as there is no statement that the trier must accept as true, there is no requirement that the trier ignore the testimony of a witness simply because her remarks contain inconsistencies or uncorroborated assertions that tend to further her own interests. Goldberg, supra, citing Gagliardi v. Raimondo Maintenance, L.L.C., 4012 CRB-1-99-4 (July 20, 2000). This principle applies to the statements of both lay and expert witnesses. Where the veracity of a witness’ factual representations is at issue, the trier’s credibility assessment is virtually inviolable on appeal. Goldberg, supra. Thus, this board would be unable to declare on review that the testimony of the claimant in this case was unreliable as a matter of law. VanStraten v. Hartford Courant, 3999 CRB-8-99-3 (March 23, 2000).

However, this board is both empowered and required to overturn the factual findings of a trial commissioner if they lack any support in the evidence, or if the trier has failed to include undisputed material facts. Kisson v. Shawmut National Bank, 4188 CRB-5-00-2 (March 16, 2001); Palandro v. Bernie’s Audio-Video T.V. & Appliances, 3876 CRB-3-98-8 (Sept. 2, 1999). With respect to the former charge, we note that a doctor must express his opinion with a reasonable degree of medical probability if it is to serve as the foundation for a commissioner’s findings, though no particular “magic words” or “talismanic language” need be uttered in his diagnosis. Struckman v. Burns, 205 Conn. 542, 555-56 (1987); Aspiazu v. Orgera, 205 Conn. 623, 632 (1987). If the facts of a case are such that expert evidence is necessary to establish a causal link between an employee’s job and his injury, such evidence must be competent insofar as the doctor’s diagnosis is stated with a sufficient degree of certainty and scientific reliability. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 448-52 (2001); Cabral v. Metropolitan District Employees, 3770 CRB-1-98-2 (May 13, 1999). We must decide whether such expert evidence was needed in this case, and if so, whether the evidence presented was satisfactory to meet the legal competency standard.

Recently, in Dengler, supra, our Appellate Court had occasion to state, “Where an issue of causation for injuries in a workers’ compensation case cannot be answered as a ‘matter of common knowledge’; . . . expert testimony on the issue is necessary.” Id., 449 (internal citation omitted). The court cited Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142 (1972), and Garofola v. Yale & Towne Mfg. Co., 131 Conn. 572 (1945), in drawing a line between those cases that require a medical interpretation of an injury’s cause and those cases that do not. Garofola is a case in which the injured plaintiff successfully established that his low back sprain was work-related even though no doctor testified on his behalf. He had been working for several hours when he felt a pain in his back that continued, causing him to later quit his employment. Id., 574. The Court reasoned that the trial commissioner’s finding of compensability should have been affirmed, as “it is in accord with ordinary human experience that such a sprain might well ensue in consequence of heavy work such as that in which the plaintiff was engaged.” Id.

Murchison, meanwhile, featured a fact pattern that mandated a different result in the eyes of the Court. There, the claimant’s method of work was changed by her employer so that she was required to lift metal pieces while in a sitting position and twist her body from the left side to the right. Id., 149-50. She slowly began to experience increasing discomfort in her toes, legs and low back. The report of the doctor who performed surgery on the claimant showed that she had a long history of low back pain, and probably had a degenerative lumbosacral disc. Id., 151. He had issued a certificate stating that her condition was not due to injury or sickness arising out of her employment. The Court reasoned that the claimant’s testimony alone was not sufficient to satisfy her burden of proof under the instant set of facts. “In the absence of direct medical testimony, the commissioner resorted to speculation and surmise in concluding that the plaintiff’s injury arose out of and in the course of her employment.” Id., 152. The primary factors distinguishing the facts of Murchison and Garofola are evident: in the latter case, the claimant’s injury manifested itself in such a short time frame that it was a reasonable use of “common sense” to ascribe it to the immediately preceding period of physical labor. In Murchison, the injury took longer to manifest, the claimant had a history of back trouble, and the treating doctor was not of the opinion that a workplace trauma had caused her condition. Therefore, the origin of the claimant’s disc problems was far from self-evident.

This board had decided in Dengler, 3780 CRB-3-98-2 (June 15, 1999), that a causal link between the claimant’s leg injury and her earlier compensable back injury could not be established without expert opinion. The claimant had suffered a broken leg allegedly falling down the stairs at home, and claimed that the mishap was caused by spinal instability residual to a work-related injury that had occurred several months earlier. No medical records supported her assertion that the two events were connected. In the resulting Dengler appeal, the Appellate Court affirmed our ruling, stating that the link among the claimant’s back injury, her alleged “spinal instability” and her subsequent fall and leg injury was “not a matter within the common knowledge of the commissioner, the board or this court. Such a theory of cause and effect is not so ‘in accord with ordinary human experience’ that it obviates the need for expert medical evidence.” Dengler, supra, 449, quoting Garofola, supra, 574.

Here, the theory of injury advocated by the claimant is not complicated. It is within everyday human experience, and cognizable by educated lay persons, that one may suffer a low back injury while lifting heavy boxes. Whether or not the claimant actually lifted such boxes, and felt pain in her back, was a pure credibility issue that the trier permissibly resolved in her favor. The main relevant difference between the facts of this case and those of Garofola is that the claimant here did not recognize the significance of her injury immediately, and waited approximately one month before seeking medical attention. The existence of this interval does not automatically transform the nature of the injury itself from one that an average person could anticipate to one which can only be identified with the assistance of a medical doctor. This time lapse would more likely suggest that one was inaccurately portraying one’s history of back discomfort. However, the trier was entitled to decide as a factual matter whether the claimant’s description of her pain was accurate. Again, he resolved that matter in her favor.

Of course, some corroboration of the claimant’s physical condition by a doctor is necessary where the injury is not visible to the naked eye. Those medical reports that describe the claimant’s symptoms reflect that she indeed had a herniated disc that caused her severe back, leg and foot pain. Claimant’s Exhibits B, C, D, E, F, G. If one questions whether lifting could cause such an injury, Dr. Lagios found it worthwhile to note that the claimant remembered moving boxes of cancelled checks shortly before she began having symptoms, and that no other injury or obvious precipitating event was apparent. Exhibit C. Meanwhile, Dr. Sclafani, a chiropractor, unequivocally stated that the claimant’s ongoing symptoms and the accident of “2/14/97” had a direct relationship. Exhibit D. The trier found that the two-day error regarding the injury date in Dr. Sclafani’s report was insignificant. Findings, ¶ B. These doctors would not have mentioned the lifting incident if it could not have conceivably caused her symptoms.

Essentially, the circumstances here reflect an injury that could readily have been caused by a lifting incident as easily as anything else. The only issue was whether such an incident actually occurred, thereby precipitating the claimant’s pain. That question was one answerable by the trial commissioner based primarily on the claimant’s own testimony, with the medical evidence merely serving to describe the condition of her back and to incidentally corroborate her story. We therefore find that the trial commissioner’s decision was adequately supported by the evidence in the record, and decline to disturb his findings on review. Pallotto, supra.

The trial commissioner’s decision is hereby affirmed. Insofar as the claimant may be entitled to benefits that were not paid pending the outcome of this appeal, interest is awarded pursuant to § 31-301c(b).