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Christoforo v. Christoforo’s Northford Gardens, Inc.

CASE NO. 4260 CRB-3-00-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 2, 2001

CHARLES CHRISTOFORO

CLAIMANT-APPELLANT

v.

CHRISTOFORO’S NORTHFORD GARDENS, INC.

EMPLOYER

and

FARM FAMILY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by David A. Kelly, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the June 15, 2000 Finding and Dismissal of the Commissioner acting for the Third District was heard February 23, 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 claimant has petitioned for review from the June 15, 2000 Finding and Dismissal of the Commissioner acting for the Third District. In that decision, the trial commissioner concluded that the claimant’s left knee condition was not caused by the compensable May 10, 1996 injury to his left extremity. Rather, the trial commissioner found that the claimant sustained a new injury while in Florida during the winter of 1997/1998. In support of his appeal, the claimant argues that he sustained a left knee injury on May 10, 1996, and that his drive to Florida caused an aggravation of said injury which required surgery. Additionally, the claimant contends that the trial commissioner erred by failing to find that the claimant was on a business trip when he went to Florida.

We will first address the respondents’ Motion to Dismiss based upon the claimant’s failure to file an appeal within ten days after the Finding and Dismissal was issued on June 15, 2000. The claimant filed a Motion to Correct on June 26, 2000 (a Monday), which was within the ten day appeal period. As the claimant filed his Motion to Correct within the ten day appeal period, we deny the Motion to Dismiss. See Prioli v. State/Connecticut State Library/Arts Commission, 3955 CRB-6-98-12 (Jan. 13, 2000); Capra v. State/Dept. of Correction, 3791 CRB-4-98-4 (April 27, 1999); Algiere v. General Dynamics Corporation/Electric Boat Division, 3466 CRB-8-96-11 (Jan. 27, 1998).

Next, we will briefly dispose of the claimant’s contention that the respondents “waived any right to deny compensability of the knee injury” pursuant to § 31-294c(c) because they paid medical bills and temporary total disability payments after the 1998 surgery. (Claimant’s Brief at p. 12). In support of this argument, the claimant cites cases regarding the provision in § 31-294c(c) which allows for exceptions to the jurisdictional requirement that a notice of claim be filed within one year, “if there has been a hearing or a written request for a hearing or an assignment for a hearing within a one-year period from the date of the accident… or if a voluntary agreement has been submitted within the applicable period, or if within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care….” The claimant argues: “Having made payments for the Claimant’s medical care, the Respondents are barred from denying compensability of the claim pursuant to Section 31-294c(c) of the Connecticut General Statutes.” (Claimant’s Brief at p. 14). The claimant’s reliance upon § 31-294c(c) is misplaced, as that section is a “savings provision” which aids claimants by allowing for alternatives to the strict requirement that a written notice of claim be filed within one year of the accidental injury or three years of the occupational disease. See Gaffney v. Stamford, 15 Conn. Workers’ Comp. Rev. Op. 257, 2219 CRB-7-94-11 (May 24, 1996). The claimant has not argued that the respondents are precluded from defending the claim pursuant to § 31-294c(b), presumably because the claimant did not file a timely written notice of claim for the 1998 injury.

We will now turn to the merits of the claimant’s appeal. The claimant’s main contention is that the trial commissioner should have found that the claimant’s left knee condition, which manifested itself during a trip to Florida during the winter of 1997/1998, constituted an aggravation of the compensable May 10, 1996 injury. We have repeatedly held that whether or not a claimant’s medical condition was caused by an accepted compensable injury is a factual question for the trial commissioner to resolve. Moawad v. American Eagle, 3701 CRB-6-97-10 (Aug. 25, 1999); Goodrow v. W.J. Barney Corporation, 11 Conn. Workers’ Comp. Rev. Op. 207, 1315 CRD-2-91-9 (Sept. 27, 1993). Where there are conflicting medical opinions that state their diagnoses within a reasonable degree of medical probability, the trier of fact must decide which is the most persuasive. Wilson-Shirley v. Yale University, 3355 CRB-3-96-6 (Nov. 4, 1997). As the factfinder, it is her duty and prerogative to weigh the credibility of the medical evidence and the testimony of the witnesses, and draw inferences based upon these impressions. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995).

In the instant case, there was ample evidence to support the trial commissioner’s conclusion that the claimant’s left knee condition constituted a new injury rather than an aggravation or compensable sequelae of the prior compensable injury of May 10, 1996. We will not repeat all of this copious evidence here, but we will highlight some of the trial commissioner’s findings. On May 10, 1996, the claimant sustained a compensable injury to his left lower extremity when he attempted to stop an unmanned truck from rolling into the street and became pinned between the truck and another vehicle. Although the claimant testified during the formal hearing that he twisted his left knee when trying to free himself, the claimant completed an incident report filed on August 8, 1996 in which he gave a detailed history of the incident but did not describe a left knee injury as he did during the formal hearing. Findings, ¶¶ 10-12. The claimant treated with Dr. Kumar, whose examinations of the claimant on July 7, 1996 and July 8, 1996 revealed an infection of the left lower leg, approximately six to eight inches above the ankle. The claimant also treated with Dr. Caldwell commencing July 22, 1996. The contemporaneous medical records of Dr. Kumar and Dr. Caldwell, along with the incident report of August 1996, lack any documented complaints regarding the left knee. See Findings, ¶¶ 11-23.

The trial commissioner further found that after Christmas of 1997, the claimant drove with his wife to Florida, and that the claimant testified that his left knee at that time “flared up…” Finding, ¶ 26. The claimant testified that while in Florida, he could not get out of bed one morning because of left knee pain. This occurred on or about January 18, 1998, at which time the claimant was transported to a medical center. On January 29, 1998, while in Florida, he underwent arthroscopic surgery to repair a left medial meniscus along with extensive debridement of a hemotoma and intra-articular loose bodies of the left knee. During the formal hearing, the claimant denied that any new injury occurred while in Florida, but testified that driving two days to Florida may have aggravated his knee. To the contrary, the medical report of January 18, 1998 indicates “left knee pain after twisting it getting out of bed….” Finding, ¶ 34.

At the respondents’ request, an independent medical examination of the claimant was performed by Dr. Sumner, who also reviewed the medical records from both Connecticut and Florida. He testified in his deposition that the history of a twisting injury while getting out of bed is not only documented in the Florida ambulance report, but is also corroborated in the separate emergency room records. Additionally, Dr. Sumner opined that the presence of several sizeable hemotomas at the time of the claimant’s surgery in Florida indicated a recent trauma, and that said condition was consistent with the histories of a twisting injury as set forth in the ambulance and emergency room reports. Dr. Sumner opined that the claimant’s left knee condition was unrelated to the May 10, 1996 work incident, and the trial commissioner accepted Dr. Sumner’s opinion.

As the trial commissioner’s conclusion that the claimant’s knee injury of January 1998 constituted a new injury rather than an aggravation of the compensable May 10, 1996 injury is fully supported by the record, including the opinion of Dr. Sumner, we must affirm that conclusion. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Additionally, we find no error in the trial commissioner’s denial of the claimant’s Motion to Correct, as the trier evaluates the proposed changes in a Motion to Correct in the same manner as she assesses the credibility of the evidence. Goodrow, supra. The trier need not grant corrections that will not affect the outcome of the case, and on review this board may not retry the matter or independently appraise the evidence underlying the proposed corrections. Pallotto, supra.

Finally, we will address the claimant’s contention that he was on a business trip in Florida when the knee injury manifested itself, and thus the trial commissioner erred in not finding the injury to be compensable. In support of this contention, the claimant cites Dombach v. Olkon Corporation, 163 Conn. 216, 221-22 (1972) and Bruce v. Lynch, Traub, Keefe & Snow, P.C., 6 Conn. Workers’ Comp. Rev. Op. 99, 587 CRD-4-87 (Jan. 26, 1989). In his Motion to Correct, the claimant requested that the trial commissioner find that the claimant was on a business trip when he was in Florida in January of 1998, alleging that the claimant drove to Florida in a company-owned vehicle1 and citing the claimant’s testimony which indicated that he was in Florida for the purpose of purchasing farm materials and equipment. The trial commissioner denied this requested correction. By denying this requested correction, it is clear that the trier was not persuaded by the claimant’s testimony that his trip to Florida had a substantial business purpose as required under Dombach, supra.2 Thus, the trial commissioner clearly dismissed the claimant’s contention that he was on a business trip while in Florida when she denied the requested correction. See Pilewski v. Danbury Auto Park, 3916 CRB-7-98-10 (Sept. 23, 1999).

The trial commissioner’s decision is affirmed.

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

1 But see Nov. 15, 1999 Transcript at p. 31, in which the claimant testified that he drove his personal vehicle rather than the company-owned truck. BACK TO TEXT

2 In Dombach, supra, our Supreme Court held that an accident occurring during a journey undertaken for both business and personal reasons could be held compensable. “When a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee’s personal journey.” Id., 224. BACK TO TEXT

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