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Sherman v. University of Connecticut/Dining Services

CASE NO. 4380 CRB-2-01-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 1, 2002

MARC SHERMAN

CLAIMANT-APPELLEE

v.

UNIVERSITY OF CONNECTICUT/DINING SERVICES

EMPLOYER

and

ROYAL & SUNALLIANCE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Charles Norris, Esq., Gordon, Chinigo, Leone, Maruzo & Basilica, 141 Broadway, P.O. Box 510, Norwich, CT 06360.

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

This Petition for Review from the April 6, 2001 Finding and Award of the Commissioner acting for the Second District was heard November 16, 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 6, 2001 Finding and Award of the Commissioner acting for the Second District. In that decision the trial commissioner determined that the claimant’s lumbar spine injury was caused by a compensable work injury which occurred on August 23, 1999 where the claimant was hit by a garage door. In support of their appeal, the respondents contend that insufficient medical evidence was presented to support the conclusion that the claimant’s low back injury was causally related to the garage door incident of August 23, 1999. Specifically, the respondents argue that during his deposition, Dr. Collins, the only physician who rendered a medical opinion, recanted his initial opinion regarding causation. We find no error.

In the instant case, the trial commissioner found that the claimant sustained a compensable injury on August 23, 1999 when he opened a garage door which sprung back down, striking the top of his head and shoulders, forcing him to the ground. Medical records indicate that the claimant complained of pain to the “back of shoulders” and “down center of spine” within hours of the work injury. Findings, ¶ 5. The claimant testified that he suffered from low back pain from August 23, 1999 through September 20, 1999, and the trial commissioner found his testimony to be credible. On September 20, 1999, while walking his dog, the claimant began to suffer severe and excruciating back pain, and sought treatment at a hospital. On September 28, 1999, the claimant was seen by Dr. Collins, an orthopedic surgeon.

Dr. Collins issued opinions on December 7, 1999 and October 25, 2000 indicating that the claimant’s low back symptoms and injury were related to the work injury of August 23, 1999. Dr. Collins testified that if the claimant was experiencing pain from August 23, 1999 to September 20, 1999, then he believes that the low back injury was caused by the work injury of August 23, 1999. As the trial commissioner found the claimant’s testimony to be credible that he did suffer back pain during this period, the trial commissioner concluded that the claimant’s low back injury was caused by his compensable work injury.

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., 349 (citations omitted).

In the instant case, the trial commissioner accepted the testimony of the claimant that he suffered from low back pain from August 23, 1999 through September 20, 1999. The trier also accepted Dr. Collin’s opinion that the low back injury was caused by the August 23, 1999 incident. That was the trier’s discretion and we may not substitute our determination of the facts for hers. Additionally, we do not agree with the respondents’ argument that during his deposition, Dr. Collins recanted his opinion regarding causation. To the contrary, after examining his deposition it is clear that he remained consistent in his opinion as set forth in the above facts. Specifically, Dr. Collins consistently opined that if the claimant felt pain during the period at issue, then it was his opinion that the low back injury was caused by the work injury. “Nov. 20, 2000 Deposition of Dr. Collins p. 9-20, 25, 28.”

As the trier’s findings and conclusion regarding the causation of the claimant’s low back injury are amply supported by the evidence, we may not disturb the decision. Ferrara, supra.

The trial commissioner’s decision is affirmed.

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

Workers’ Compensation Commission

Page last revised: December 17, 2004

Page URL: http://wcc.state.ct.us/crb/2002/4380crb.htm

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