CASE NO. 4352 CRB-7-01-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 16, 2002
MATHOG & MONIELLO
SECOND INJURY FUND
The claimant was represented by Guy L. DePaul, Esq., Jones, Damia, Kaufman, Borofsky & DePaul, 301 Main Street, Danbury, CT 06810.
The respondents were represented by Kevin Maher, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.
The Second Injury Fund was represented by Michelle Truglia, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120. The Fund did not file a brief or participate in oral argument as the issues on appeal did not involve the Fund.
This Petition for Review from the February 2, 2001 Finding and Award of the Commissioner acting for the Seventh District was heard September 14, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the February 2, 2001 Finding and Award of the Commissioner acting for the Seventh District. In that decision the trial commissioner found that on December 12, 1993 the claimant sustained a compensable injury to his back while moving a patient from a hospital bed to an operating table. In support of their appeal, the respondents contend that the claimant was initially unsure of the date of injury, and thus the trier erred in finding that the injury occurred on a certain date. Additionally, the respondents argue that insufficient medical evidence was presented to support the conclusion that the claimant’s injury and resulting disability were causally related to the lifting incident of December 12, 1993. We find no error.
We will first address the respondents’ contention that the record does not support the trial commissioner’s determination that the claimant sustained an injury while at work on December 12, 1993. Specifically, the respondents argue that the claimant was initially unsure of the date of injury, and thus the determination of a December 12, 1993 date of injury is “fictitious.” Respondents’ Brief at 4. In the instant case, the trier found that the claimant filed a Form 30C, Notice of Claim, in which he indicated that he suffered an injury to his back in December of 1993 while moving a patient. Subsequently, the claimant “was able to better recollect . . . the circumstances and events surrounding and leading to his injury to his low back.” Findings, ¶ 3.
The trier made specific findings regarding the issue of the date of injury, including the finding that the claimant, based on a written record of his hospital schedule, was able to testify that the injury occurred fairly late at night and that Dr. Harrison was present at the time of the injury. After reviewing documents regarding his work schedule, the claimant testified that “he was certain that the date of injury to his low back occurred on December 12, 1993.” Findings, ¶ 15. Dr. Harrison confirmed that the claimant had complained of a back injury to her, while in the operating room or post-operating room, shortly after the alleged incident occurred. After reviewing her notes and scheduling logs, Dr. Harrison was of the opinion that the injury occurred on December 12, 1993.
The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999); McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted). “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it . . . .” Id. at 349 (citations omitted).
In the instant case, the trial commissioner accepted the testimony of the claimant that his injury occurred on December 12, 1993. That was his discretion and we may not substitute our determination of the facts for his. Additionally, we do not agree with the respondents’ argument that there is insufficient medical evidence in the record to support causation. The trial commissioner found that the claimant “was examined and treated by numerous physicians whose reports were entered into evidence.” Findings, ¶ 19. After initially being prescribed Naprosyn by Dr. Harrison, when the claimant’s back pain did not improve, the claimant consulted with Dr. Shahid, a neurosurgeon, who prescribed injections to the claimant’s low back. Said injections were administered by Dr. Sanchez on several occasions, without relief. Shortly thereafter, the claimant was unable to work, at which time surgery was done on his back on June 17, 1994.
In the instant case, the trial commissioner concluded that the claimant sustained an injury to his back while lifting a patient on December 12, 1993, and that his resulting back pain and need for surgery were causally related to this incident. The trial commissioner did not cite any specific medical report to support causation. However, we have explained that a medical opinion within a reasonable degree of medical probability is needed to support causation if the facts of the case are such that expert evidence is necessary to establish a causal link. Canevari v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001). In Canevari, the board ruled that the circumstances of the claimant’s back injury allowed the trier to rely primarily on the claimant’s own testimony in finding the injury compensable. The board further explained that expert testimony from a physician linking the claimant’s herniated discs to the lifting incident was not indispensable, as the causal link between lifting heavy objects and lower back injuries falls within the realm of common knowledge on which the trier may rely. In contrast, “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., quoting Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449 (2001) (internal citation omitted).
In the instant case, we find no error in the trial commissioner’s conclusion that the claimant’s back condition and need for surgery were caused by the lifting incident, as it is certainly common knowledge that lifting a heavy object, such as a patient, may cause a serious back injury, especially where, as here, the claimant’s symptoms and need for treatment occurred immediately following the incident. As the trier’s findings regarding whether the claimant sustained a compensable injury 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.
Finally, we note that the claimant has filed a cross-appeal in which he contends that the trial commissioner erroneously granted paragraph one of the respondents’ Motion to Correct so as to indicate that Dr. Harrison was the claimant’s co-employee rather than the claimant’s supervisor. We need not address this issue, as it is immaterial to the matter at hand, which is the compensability of the claimant’s injury.
The trial commissioner’s decision is affirmed.
Commissioners George A. Waldron and Ernie R. Walker concur.