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Bastek v. Camco Fittings Co.

CASE NO. 4487 CRB-3-02-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 25, 2003

STANISLAW BASTEK

CLAIMANT-APPELLEE

v.

CAMCO FITTINGS CO.

EMPLOYER

and

ACE USA (f/k/a INSURANCE COMPANY OF NORTH AMERICA)

(CIGNA)

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Christopher DePalma, Esq., Kennedy, Johnson, D’Elia & Gillooly, 545 Long Wharf Drive, New Haven, CT 06511.

The respondents were represented by David Schoolcraft, Esq., 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.

This Petition for Review from the January 22, 2002 Finding and Award of the Commissioner acting for the Third District was heard July 19, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the January 22, 2002 Finding and Award of the Commissioner acting for the Third District. They contend on appeal that the trier erred by finding that the claimant suffered a compensable back injury arising out of and in the course of his employment. We find no error, and affirm the trial commissioner’s decision.

The trial commissioner found the following relevant facts. The claimant was employed as a machine set-up man with the respondent Camco Fittings in March 1996, and had been working there since 1989. His job required him to put between six and eight steel bars of varying size into a machine for its operator, some of which could weigh up to 200 pounds. When the bars were large and heavy, he would be assisted with the loading process. On or about Friday, March 15, 1996, the claimant was sliding a bar into a machine when the “pusher bar” cracked inside the machine, forcing him to remove the steel bars. While lifting one of them, he felt a crack in his back, and began to experience pain. He reported the incident that day to his supervisor, Mr. Fekieta, and called his son to pick him up and drive him home because he was in too much discomfort to drive his own car home. On the following Monday, the claimant told Fekieta that he would be seeing a physician for the injury.

Dr. McCallum examined the claimant on March 27, 1996, and diagnosed a lumbar spine strain with acute spasm. The claimant missed six weeks of work, during which he received his regular salary. He also underwent physical therapy upon the doctor’s recommendation. According to the claimant, Camco paid for the resulting medical bills. Though his back pain continued throughout his subsequent employment, the claimant kept working at Camco until being laid off in July 1998. He returned to Dr. McCallum in August 1998, who referred him for an MRI that revealed a central disc protrusion at L5-6. The claimant was then sent to Dr. Kramer, who diagnosed chronic lumbar sprain and opined that conservative care would suffice. He thought the claimant capable of performing his regular work as a lathe operator (for a new employer).

Dr. Filewicz first saw the claimant in July 1999, and opined that his chronic back condition was related to the March 1996 work incident. He stated that the claimant had suffered a 10% permanent partial impairment of the lumbar spine, and assigned him a lifting restriction of 20-25 pounds. The claimant was referred to Dr. Karnasiewicz after Dr. Filewicz retired in 2000. Dr. Harbut also saw the claimant in January 2000 and again in December 2000 following an exacerbation of his back pain that occurred while he was working for Budney Machine Company. He disabled the claimant from work for eight days. The trial commissioner ordered that the respondents accept the compensability of the claimant’s injury, and instructed them to pay benefits pursuant to § 31-308(b) for a 10% permanent partial disability of the spine. He also ordered payment of $1269.00 in medical bills, and assigned Dr. Karnasiewicz as the claimant’s authorized treating physician. The respondents have appealed from that decision, along with the denial of their subsequent Motion to Correct.

The allegations of error here on appeal are aimed at the trier’s findings of subordinate fact. The respondents assert that there are substantial and material inconsistencies in the evidence with regard to the claimant’s alleged date of injury and the onset of his symptoms. They also maintain that Dr. Filewicz’ medical opinion regarding causation was conditioned on the existence of no prior back ailments, while the claimant had in fact experienced back pain in 1994 that required medical attention. In the view of the respondents, the trier’s findings are unsupported by the evidence, which would require a reversal of his finding of compensability.

This board, of course, is bound by a well-defined standard of deferential review on appeal. In a workers’ compensation case, the trial commissioner is the sole person who is empowered to resolve issues that concern the credibility of the evidence introduced by the parties, including medical reports, other varieties of documents, and the testimony of lay and expert witnesses. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). Thus, in a contested case, the burden falls upon the claimant to prove to the trier’s satisfaction that he has sustained an injury that has arisen out of and in the course of his employment, and that his claimed incapacity is related to such a compensable injury. Kudlacz v. Lindberg Heat Treating Co., 70 Conn. App. 559, 564 (2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). The trier’s factfinding discretion entitles him to credit all, part or none of any testimony by a doctor or a lay witness, to resolve discrepancies or inconsistencies within the evidence, and to reject evidence that superficially may appear to be uncontradicted. Phaiah, supra; Warren, supra.

In considering an appeal from the factual findings of a trial commissioner, this board may not hear the facts de novo, thereby retrying the case ourselves. Kudlacz, supra, 563; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Rather, we review the trier’s factual findings only to determine whether they are supported by evidence on which a reasonable person could rely, or whether they omit material facts that are truly admitted and undisputed. Kudlacz, supra; Warren, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). As for the trier’s legal conclusions, we must preserve their integrity unless they result from an incorrect application of the law to the subordinate facts, or from an inference that has been drawn from them illegally or unreasonably. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Warren, supra.

The respondents have asked that we review the claimant’s testimony regarding the date of his injury. The April 3, 1996 Form 30C that was filed on the claimant’s behalf by his attorney describes a back injury that occurred on “3/15/96 and 3/25/96 while lifting steel bars.” During direct testimony on June 28, 2001, counsel asked the claimant (through an English-Polish interpreter) if he suffered a work injury on March 25, 1996, to which the claimant said “yes.” Transcript, p. 15. After explaining that he was hurt while trying to move a 100-pound steel bar, he stated that the resulting pain left him seated on the floor, and said that his son came to pick him up at the end of the day because he couldn’t drive his own car. Id., pp. 16-18. According to the claimant, he was hurt on a Friday. He began looking for medical help on Monday, but it took two days before Dr. McCallum could fit the claimant into his schedule. Id., p. 18. He also said he did not return to work for approximately six weeks following the injury. Id.

The respondents make much of the fact that Dr. McCallum’s records reflect an initial visit by the claimant on Wednesday, March 27, 1996, and a history of the claimant having suffered an injury on the 15th, with acute pain first noted on the following day. Claimant’s Exhibit A. As the claimant specifically recalled being injured on a Friday, and seeing the doctor the following Wednesday; Transcript; pp. 27-28; the appellants maintain that the March 15 date of injury was clearly erroneous, as was the trier’s refusal to correct his finding to reflect this inconsistency. See ¶ D, Motion to Correct. “[F]or credibility purposes, he needed to establish that he did not wait days or weeks to seek treatment, to avoid calling into question the causal connection.” Brief, p. 4. The respondents also call attention to the fact that the description of the manner in which the claimant first felt the onset of pain is different in his testimony than it is in Dr. McCallum’s report, which they label a “critical contradiction.” Brief, p. 5.

At the outset of cross-examination, respondents’ counsel reminded the claimant that he had given the date of his injury as March 25, 1996, which the claimant acknowledged. Transcript, p. 27. The claimant then explained that he was sure his injury occurred on a Friday, because his lost time from work commenced on the following Monday, and it took him two days from that point to see Dr. McCallum. Id. When asked why Dr. McCallum’s history described the injury as occurring on March 15th, the claimant said, “I don’t know how that happened. . . . If this was so long ago, that if I remember correctly, I have no idea how these discrepancies happened between these dates. Remember, I had everything translated between my son because I couldn’t speak the language and I remember . . . that it happened on March 25th.” Id., 28.

Regardless of any negative inference that the trier might have drawn regarding the claimant’s credibility, he was likewise entitled to accept this explanation for the inconsistency between Dr. McCallum’s report and the Form 30C on the one hand, and the claimant’s testimony on the other. VanStraten v. Hartford Courant, 3999 CRB-8-99-3 (March 23, 2000)(trier has authority to accept claimant’s explanation regarding discrepancies in record). We note that he found the claimant’s injury to have occurred “on or about March 15, 1996,” which suggests that he purposely left a bit of leeway in his decision due to confusion regarding the precise injury date. Though it was not discussed at trial, and we cannot find facts on appeal, this situation begs the question of whether the claimant’s injury in fact occurred on Friday, March 22, 1996, which would be entirely consistent with the claimant’s story, the initial lost time date of March 25, 1996, and Dr. McCallum’s initial treatment date of March 27, 1996. The trier might very reasonably have inferred this or some other explanation, yet adopted the date in the Form 30C simply because the respondents did not allege that a defect in notice had affected the employer’s ability to investigate the injury. See Surowiecki v. UTC/Pratt & Whitney, 4233 CRB-8-00-5 (May 24, 2001)(where defect in notice prejudices employer, reasonable allowance shall be made, but one-week error regarding injury date did not require dismissal of claim). After examining the record, we are comfortable that the trier omitted no material, undisputed facts that would have invalidated the claimant’s testimony. If there remains any lingering uncertainty regarding the precise date of injury, we do not believe it significant enough to warrant reversal of the trier’s decision in light of the evidence produced during trial. See Drivas v. Fair Auto Park, 15 Conn. Workers’ Comp. Rev. Op. 366, 2279 CRB-7-95-1 (June 28, 1996)(error regarding Form 30C date of injury in accidental injury case would prevent preclusion, but case should be tried on its merits).

Similarly, Dr. McCallum’s description of the claimant as having noted no “out of the ordinary pain” until the day following his work injury does not constitute “undisputed contradictory evidence.” Claimant’s Exhibit A; Respondents’ Brief, p. 5. Given the claimant’s language barrier, the same inaccuracies that affected the doctor’s understanding of the date of injury could easily have affected his understanding of the claimant’s onset of symptoms, and the claimant would not have been in a position to correct those misimpressions. The mere existence of potential contradictions in the histories given by a claimant does not amount to incontrovertible proof that a claimant is guilty of prevarication. Malafronte v. Med-Center Home Health Care, 3888 CRB-7-98-9 (Aug. 31, 1999). As noted above, the commissioner was entitled to rely on some aspects of Dr. McCallum’s report, while disregarding others—such as the timetable of events surrounding the claimant’s injury. Warren, supra. His omission of this requested correction was therefore not erroneous.

The respondents’ challenge to the sufficiency of the medical evidence regarding causation also implicates the factfinding duties of the trial commissioner, insofar as it was his right to judge the credibility of Dr. Filewicz’ medical opinion. Tartaglino, supra. Taking that discretion into account, we must then decide what quantum of proof was legally necessary for the claimant to establish a causal connection between his back condition and his 1996 compensable injury. In certain cases, the etiology of an injury is straightforward enough that it can be determined without the help of expert testimony, simply by applying common knowledge. Garofola v. Yale & Towne Mfg. Co., 131 Conn. 572, 574 (1945); Garofalo v. Jarvis Products Corp., 4249 CRB-8-00-6 (Sept. 12, 2001). “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.” Garofalo, supra, citing Canevari v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001). In cases where issues of causation are more complex, however, expert testimony on the issue is necessary. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449 (2001). The opinion of such a medical expert must be expressed in terms of a reasonable probability, which would be based upon the entire substance of his or her testimony, rather than through the utterance of a certain “magic” phrase. Struckman v. Burns, 205 Conn. 542, 554-55 (1987); Malafronte, supra.

In terms of establishing the claimant’s initial injury, he was able to testify to a specific incident that occurred on or about March 15, 1996, in which the trier found that he experienced significant back pain immediately after moving a heavy object. Such an incident does not have a complex or subtle etiological theory that is beyond the ken of a layperson, as the claimant’s pain manifested itself so quickly that it could be readily ascribed to the physically arduous task that had just been attempted. Canevari, supra. Thus, expert medical testimony regarding causation was not needed before the compensability of that injury could be established. The more difficult question is whether the claimant’s long-term chronic lumbar sprain syndrome as diagnosed in 1998 was attributable to that same injury, as the claimant had returned to work for two years prior to seeing Dr. McCallum in August 1998.

When the claimant left Dr. McCallum in May 1996, he was reporting no more pain despite the resumption of full duty at work, and he was instructed to continue home exercise and to contact the doctor if he redeveloped any low back pain or radicular symptoms. Exhibit A, supra. The claimant testified that he had felt the need to return to the doctor before August 1998, but his son couldn’t get time off from work to take him to his periodic appointments. Transcript, p. 32. The trial commissioner was entitled to credit this testimony, and factor it into his reading of the subsequent medical reports. He was also entitled to credit the history that the claimant gave to Dr. McCallum on August 20, 1998, which reflected that he had been experiencing intermittent sharp pain through his low back since his injury in March 1996. Still, given the passage of time, the claimant’s two-year return to work, and the report detailing the temporary resolution of his symptoms in May 1996, we think that an expert medical opinion was needed to draw a firm causal connection between the 1996 injury and his later symptoms.

Dr. Filewicz’ August 18, 2000 opinion reads, “As long as he had no problem with his lower back before he injured himself or any intervening injuries, it is my feeling that the [1996 injury] . . . was the cause of the bulging disc in his lower back and the continuation of pain he had in the lower back.” Claimant’s Exhibit D. According to the patient history, the claimant had told Dr. Filewicz that he had no previous back trouble, and denied any new injuries. The respondents argue that the language used by Dr. Filewicz amounted to a conditional opinion, which was invalidated by the trier’s finding that the claimant suffered back problems in September 1994. This, then, would leave an insufficient medical basis in the record for the trier’s award, requiring reversal on appeal.

Offsetting that alleged omission by the claimant, however, is his testimony that he completely recovered from his noncompensable 1994 injury, which was merely an inflammation that caused him to miss one week of work. Transcript, p. 30. Dr. Dudek’s report of September 26, 1994 also described the claimant as asymptomatic. Claimant’s Exhibit I. The medical records of Dr. McCallum and the records of Star Sports Therapy & Rehabilitation both aid in establishing the March 1996 injury, which was the last back injury for which he was treated. Claimant’s Exhibits A, B. As noted, the claimant also gave a history to Dr. McCallum of experiencing intermittent lower back pain since 1996, and testified that he would have liked further treatment before August 1998.

We agree with the claimant’s contention that, when read in conjunction with the totality of this evidence, Dr. Filewicz’ opinion establishes a causal connection between the 1996 injury and the claimant’s current back condition within a reasonable degree of medical probability. As we noted in Perrelli v. Yale University, 4350 CRB-4-01-1 (Dec. 20, 2001), a commissioner may choose to credit the opinion of a doctor as long as he can reasonably conclude that, in light of the subordinate facts, the physician’s opinion makes it more likely than not that a compensable injury occurred in the manner alleged. By extension, the same is true in tying the existence of a chronic back condition to an injury from two years earlier. Therefore, we hold that the commissioner did not err by relying on Dr. Filewicz’ opinion in finding the claimant’s condition compensable.

Accordingly, we affirm the trial commissioner’s decision.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

Workers’ Compensation Commission

Page last revised: December 16, 2004

Page URL: http://wcc.state.ct.us/crb/2003/4487crb.htm

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