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Duval v. O-Z Gedney

CASE NO. 4440 CRB-5-01-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 12, 2002

CAMILLE DUVAL

CLAIMANT-APPELLANT

v.

O-Z GEDNEY

EMPLOYER

and

CONSTITUTION STATE SERVICE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Gary D. Constant, Esq., 301 West Street, Bristol, CT 06010.

The respondents were represented by Matthias DeAngelo, Esq., Law Offices of Scott B. Clendaniel, 300 Windsor Street, P. O. Box 2138, Hartford, CT 06145-2138.

This Petition for Review from the September 6, 2001 Finding and Dismissal of the Commissioner acting for the Fifth District was heard April 26, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has filed a timely petition for review from the September 6, 2001 Finding and Dismissal of the Commissioner acting for the Fifth District. In that decision, the trial commissioner concluded that the claimant did not meet his burden of proof that he sustained a neck injury on July 28, 1999 which arose out of and in the course of his employment. In support of his appeal, the claimant contends that the trial commissioner erred by relying upon a written report by Dr. Taylor which, the claimant argues, was inherently unreliable. The claimant contends that the undisputed evidence indicates that the claimant sustained a neck injury while working on July 28, 1999. We find no error.

The trial commissioner found the following relevant facts. The claimant testified that on July 28, 1999 he sustained an injury to his neck while working for the respondent employer. Specifically, he testified that while operating a machine, he was startled by a loud noise, causing him to twist and turn his neck, and that he “felt a snap in [his] neck and a burning sensation.” Findings, ¶ 7. He was transported to the emergency room where he was diagnosed with a cervical spasm. X-rays were taken which noted “degenerative disc disease at C4-5 and C5-6 level with hypertrophic spurring encroaching on the spinal canal and neural foramina bilateral at both levels.” Findings, ¶ 11. The claimant returned to work on July 29, 1999. On August 23, 1999, the claimant underwent an MRI which noted “degenerative changes, cervical spine C4-5 and C5-6, with narrowing of the spinal canal at these levels. No cord compression or disc herniation identified.” Findings, ¶ 17.

The claimant was examined by Dr. Taylor, an orthopedic surgeon. His report of September 30, 1999 indicated that the claimant had been having pain for about one year and that the claimant denied any injury. Findings, ¶ 20. Dr. Taylor testified that the claimant had degenerative changes in his cervical spine, which would typically take years to develop, and that the findings of the August 23, 1999 MRI would not be explained by the incident of July 28, 1999. Findings, ¶ 22. Furthermore, Dr. Taylor opined that if the claimant were to need surgery, it would more likely be as a result of continued degeneration and not as a result of the July 28, 1999 injury. On cross-examination, Dr. Taylor testified that the asymptomatic degenerative conditions exhibited by the claimant can be made symptomatic by a traumatic event. Findings, ¶ 24.

The trial commissioner further found that the claimant testified that he had never injured his neck or had pain prior to July 28, 1999, and that he testified that he had never filed a workers’ compensation claim relating to his neck in 1990. To the contrary, the trial commissioner found that the claimant had in fact filed a notice of claim in 1990 which alleged a sprained neck injury. The trial commissioner also found that the human resources manager of the respondent employer testified that the claimant had filed over 20 workers’ compensation claims including a 1995 alleged neck injury. The trial commissioner concluded that the claimant did not sustain his burden of proof regarding his claim of an injury which arose out of and in the course of his employment. The trial commissioner specifically found that the claimant’s testimony was not credible regarding the mechanism of his injury and his prior neck conditions. Moreover, the trial commissioner concluded that if in fact an injury occurred on July 28, 1999, as alleged by the claimant, said injury was self limiting in nature and not a significant or substantial factor in the ensuing care and treatment of the claimant.

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).

It is the trial commissioner’s duty and prerogative to weigh the credibility of the medical evidence and the testimony of the witnesses, including the claimant, 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); see also Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). The trial commissioner possesses the exclusive discretion to evaluate the credibility of the evidence, including both the testimony of lay witnesses and the opinions of medical professionals. Kish v. Nursing And Home Care, Inc., 47 Conn. App. 620, 627 (1998), aff’d, 248 Conn. 379 (1999). Accordingly, in this case, we may not disturb the trial commissioner’s determination regarding the claimant’s lack of credibility. Moreover, the record fully supports the trial commissioner’s alternative conclusion that the claimant’s alleged injury, if it did occur, was self limiting in nature and not a significant or substantial factor in the ensuing care and treatment of the claimant. See Hanzlik v. James Freccia Auto Body, 15 Conn. Workers’ Comp. Rev. Op. 2, 1984 CRB-7-94-3 (Nov. 1, 1995), aff’d, 43 Conn. App. 908 (1996)(per curiam).

The trial commissioner’s decision is affirmed.

Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.

Workers’ Compensation Commission

Page last revised: December 17, 2004

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