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Garofalo v. Jarvis Products Corp.

CASE NO. 4249 CRB-8-00-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 12, 2001

GUY GAROFALO

CLAIMANT-APPELLEE

v.

JARVIS PRODUCTS CORP.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by David P. Mester, Esq., Mester, Grabow & Miller, 10 Grand Street, Hartford, CT 06106-1504.

The respondents were represented by Nancy Rosenbaum, Esq., 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the June 1, 2000 Finding and Award of the Commissioner acting for the Eighth District was heard May 18, 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 June 1, 2000 Finding and Award of the Commissioner acting for the Eighth District. They contend on appeal that the trier erred by finding that the claimant sustained a compensable repetitive trauma injury to his knee, and in approving treatment by certain physicians. The appellants’ base their claims of error on the assertion that the evidence does not support these conclusions in light of (a) inconsistencies in the claimant’s testimony and (b) insufficient medical evidence to link his knee injuries with his employment at the respondent Jarvis Products Corp. After considering these arguments, we find no error, and affirm the trial commissioner’s decision.

In a workers’ compensation case, the claimant always carries the initial burden of proving that he has sustained a compensable injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000), aff’d, 63 Conn. App. 482 (2001). The trial commissioner, in turn, possesses the exclusive discretion to evaluate the credibility of the evidence, including both the testimony of lay witnesses and the opinions of medical professionals. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). In order to prevail, the claimant must offer evidence sufficient to persuade the trier of fact that his injuries and/or disability arose out of and in the course of his employment. Thus, if a commissioner were skeptical of all of the evidence offered by both parties, the defending respondent would essentially prevail by default. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001).

There are some cases in which the nature of an injury is relatively simple to determine; for example, an average educated layman would be able to appreciate that a low back sprain would foreseeably occur while one was lifting heavy boxes. Canevari v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001). In such circumstances, a doctor’s opinion asserting that an injury is related to a claimant’s alleged work activity is not essential in order to establish compensability. Garofola v. Yale & Towne Mfg. Co., 131 Conn. 572, 574 (1945); Canevari, supra. Conversely, where the theory of injury is complex, or where a claimant has a history of a debilitating condition or specific trauma to the body part at issue therein, compensation cannot be paid unless a physician confirms within a reasonable degree of medical probability that there is a causal connection between injury and employment. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449 (2001). The subordinate findings themselves often aid in determining the quantum of proof needed to establish compensability. Here, the nature and etiology of the claimant’s injury is of moderate complexity. We have determined that the trial commissioner had before her sufficient proof to establish causation given her findings, the nature of the claimant’s alleged injury, and the evidence in the record.

The claimant worked for Jarvis Products from March 1979 to April 28, 1995, when he left work because of pain in his knees. He believed that his discomfort was caused by his job duties. From 1990 through 1995, the claimant’s position as a “set-up man” required him to load parts and tools into a machine, and to assemble fixtures. He testified that in order to obtain a test piece to ensure that it conformed to standards, he would have to stand by the machine leaning into it with his “knees flexed a little in order not to fall into the machine.” Findings, ¶ 7, quoting July 21, 1999 Transcript, p. 35. His job also required him to put together fixtures on the floor before bolting them onto a table, which forced him to either squat down or to move them with a hoist. When loading tools into a machine, he could not avoid squatting. Sometimes he had to kneel on the cement floor as well. The claimant also performed an assignment every six weeks that required him to use a “chick vice,” which he described as being “physically abusive” to his body. Id., p. 95. To operate this vice, it was necessary for the claimant to gain leverage by pressing his knees against a metal bar while pulling down or pushing up with great force. September 14, 1999 Transcript, pp. 24, 26-27. He testified that he did between three and ten set-ups per day, taking roughly 30 minutes for each, and that he squatted an average of 100 times per day.

Though two of the claimant’s former foremen and the employer’s Operations Manager testified that the claimant had overstated the amount of squatting, kneeling and standing motionless over machines that had been required at his job, the trier was not required to credit their testimony over that of the claimant. It is worth noting that she personally visited the job site, and was able to view the “chick vice” in operation. The commissioner’s finding that the claimant suffered repetitive trauma to his knees during the course of his employment with Jarvis Products demonstrates that she found his testimony believable and resolved any inconsistencies in his favor, as was her prerogative. Findings, ¶ A; see, e.g., Gagliardi v. Raimondo Maintenance, L.L.C., 4012 CRB-1-99-4 (July 20, 2000). The trier was likewise entitled to make other factual findings based on the claimant’s testimony, including her finding that the claimant was partially disabled from April 25, 1995 to October 23, 1997, during which time he worked at Brian House, an agency for developmentally disabled adults. The claimant testified that the Brian House job was not a physical one, and that it had no negative effect on the condition of his knees. July 21, 1999 Transcript, supra, pp. 61-62.

With respect to the medical evidence, the same standards of review apply as to lay testimony, insofar as the trier is entitled to credit all, some or none of any doctor’s testimony over that of any other doctor, as long as the trier relies on opinions that have been expressed within a reasonable degree of medical probability. Murchison, supra; Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001). In her findings, the trier discussed the claimant’s visits with various general practitioners and specialists, including Drs. Bath, Cambridge, Green, and Villani; a chiropractor, Rocco Labbadia; and the respondents’ independent medical examiner, Dr. Zimmerman. Though the conclusions do not unambiguously declare which of these doctors the trier found reliable, the commissioner is not required to “patently state every piece of credible evidence or testimony that contribute[s] to the rendering of her decision.” Keenan v. Union Camp Corp., 49 Conn. App. 280, 285 (1998) (emphasis omitted). If the record contains medical evidence that supports the trier’s ultimate conclusion, this board must infer on review that the trier both considered and relied upon that evidence, unless the findings specifically indicate otherwise. Id., 284-86.

Here, the most significant set of reports are those of Dr. Cambridge, who performed arthroscopic surgery on the claimant on October 23, 1997. When the claimant first began seeing Dr. Cambridge in 1995, he was complaining of marked pain, and told the doctor that he believed his “jumper’s knee” was caused by his work duties. See Claimant’s Exhibit D, June 7, 1995 report. The doctor did not question that the claimant suffered from bilateral patellar tendonitis, but labeled him an inappropriate candidate for surgery even though conservative management such as physical therapy had not been very effective. Id., August 22, 1995 report. As time went on, and the claimant continued to be unresponsive to conservative treatment, Dr. Cambridge agreed to perform an MRI and an arthroscopic evaluation of the claimant’s knees, stating within “a reasonable degree of medical probability that Mr. Garofalo’s bilateral patellar femoral arthralgia is causally related to his work.” Id., December 12, 1995 report.

It took many months for the MRI to be performed, and it proved to be insufficiently diagnostic, though it revealed a meniscus tear and a lesion of the patella femoral joint. Id., October 30, 1996 report. The only way to obtain a definitive diagnosis, in Dr. Cambridge’s opinion, was to scope the knee, to which the claimant agreed. Id. The surgery took place the following year, after which the doctor stated as follows: “To my surprise the patient had marked hypertrophic synovial tissue in the medial gutter. . . . The patient’s pathology is more than I expected considering the complaints . . . and the preoperative findings that were obtained with imaging studies and physical examination. The patient should probably have the other knee arthroscoped and cleaned out. He clearly has a work-related injury that has resulted in a progressive deterioration of his knees.” Id., Nov. 7, 1997 report (emphasis added.) Dr. Cambridge later stated that he was satisfied with the claimant’s post-surgical progress, and rated him with 7.5% permanent partial disabilities of each knee on June 9, 1998. The trier adopted that diagnosis in ¶ C of her findings.

There is little question that the combination of the claimant’s testimony and Dr. Cambridge’s reports adequately supports the trier’s conclusion that the claimant suffered a compensable repetitive trauma injury at his workplace. They also support her finding of temporary partial disability, and her order that the respondents accept liability for the medical bills of Drs. Bath (a general practitioner, and the claimant’s initial treater), Green (an orthopedist)1 and Cambridge (also an orthopedist), including the cost of surgery. Regardless of the contents of any other doctors’ reports, the trier was entitled to rely on those of Dr. Cambridge. Tartaglino, supra, 195-96. This board may not disturb those conclusions on review, or substitute its own findings for those of the commissioner. Id., 196. Therefore, we must affirm the trial commissioner’s decision.

The trier’s decision is hereby affirmed. Insofar as any benefits due the claimant have remained unpaid pending the outcome of this appeal, interest is awarded as required by § 31-301c(b).

Commissioners George A. Waldron and Ernie R. Walker concur.

1 It appears that the claimant went on his own to see Dr. Green on May 15, 1995, as neither Dr. Bath nor Dr. Cambridge (whom he had seen once at that point) was yet able to offer him pain relief. See Claimant’s Exhibit U. There is no indication that the claimant saw Dr. Green more than once. As neither the respondents nor this commission had yet authorized a specific treating physician for the claimant, we do not believe it erroneous for the trier to retroactively authorize payment for this single-treatment session. BACK TO TEXT

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