CASE NO. 4536 CRB-1-02-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 17, 2003
NIRO BROTHERS/MASON ENTERPRISES
NATIONWIDE MUTUAL INSURANCE CO.
The claimant was represented by Kevin Coombes, Esq., McCarthy, Schuman & Coombes, 107 Oak Street, Hartford, CT 06106.
The respondents were represented by Fred Monahan, Esq., Law Offices of John F. Della Jacono, 639 Research Parkway, Meriden, CT 06450.
This Petition for Review from the June 3, 2002 Finding and Dismissal of the Commissioner acting for the First District was heard December 20, 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.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the June 3, 2002 Finding and Dismissal issued by the Commissioner acting for the First District. In that Finding and Dismissal the commissioner concluded the claimant’s heart condition and subsequent treatment, surgery and disability did not arise out of and in the course of his employment.
The pertinent facts are as follows. The claimant was a general mason and foreman for the respondent-employer. The claimant testified that his job was very physically demanding. On or about, February 23, 1998 the claimant noticed a shortness of breath while climbing stairs.
The claimant then sought treatment from Dr. James E. Kallal, M.D. a cardiologist. The claimant underwent diagnostic studies that revealed coronary artery disease and severe aortic regurgitation with congestive heart failure. Dr. Kallal referred the claimant to Dr. Hiroyoshi Takata, M.D. On May 7, 1998 Dr. Takata performed coronary bypass surgery and replaced the claimant’s aortic valve.
Dr. Kallal opined that the physical activities associated with claimant’s employment triggered his cardiac symptoms. At the request of the respondents’ the claimant was examined by Dr. Arthur Landry, M.D. Dr. Landry opined that the claimant suffered from “myocardial ischemia, coronary artery disease and aortic regurgitation due to calcific changes of the bicuspid aortic valve.” Findings, ¶14. Dr. Landry additionally opined that while the physical stress associated with the claimant’s job may have made the claimant aware of his underlying cardiac condition, the physical stress did not cause the condition.
Relying in large measure on Dr. Landry’s assessment the trier concluded that the claimant’s heart condition and subsequent medical treatment did not arise out of and in the course of the claimant’s employment, and dismissed the claim. The claimant filed this appeal. The ultimate issue presented for review is whether the commissioner erred in concluding that the claimant failed to carry his burden of proof that his heart condition and subsequent medical treatment arose out of and in the course of his employment.
The claimant contends that a fundamental tenet of workers’ compensation law is that an “employer takes the employee in the state of health in which it finds the employee.” Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 435 (1996) (internal quotations omitted). The claimant argues but for the strenuous activities of the claimant’s job duties, medical treatment and the concomitant loss of time from work would not have been required. The claimant further notes that Dr. Landry testified that a more sedentary type of job would have delayed the onset of his symptoms for a relatively short period of time.
In support of his contention the claimant cites Seeger v. Naugatuck, 15 Conn. Workers’ Comp. Rev. Op. 240, 2220 CRB-5-94-11 (May 9, 1996). In Seeger, the trial commissioner awarded benefits to a police officer whose employment duties aggravated his lymphedema. The condition manifested itself as swelling in the lower extremities. As part of his employment as a police officer the claimant was required to sit and stand for long periods of time. In Seeger, the commissioner relied on an expert medical opinion relating long periods of sitting and standing as aggravating the claimant’s lymphedema. However, as this panel noted in Seeger, supra, whether a claimant’s medical condition is aggravated by his employment is a matter dependent upon the facts as found by the commissioner.
In Seeger, the commissioner gave greater weight and credibility to the expert medical opinion(s) supporting the claimant’s claim. Here, the trier gave greater weight to Dr. Landry’s opinion which is entirely within his prerogative as the fact finder. Valletta v. State/DMR, 4543 CRB-5-02-6 (March 26, 2003). Furthermore, following Seeger, this tribunal considered Franco v. Dependable Motors Inc. d/b/a Branford Dodge, 4281 CRB-3-00-8 (July 17, 2001) and stated:
However, whether the claimant’s alleged work stress aggravated his pre-existing nonwork related cardiac condition so as to cause him to suffer a compensable injury was a factual issue for the trial commissioner, and his conclusion “is entitled to the same deference as that of a trial judge or a jury on the issue of proximate cause.” Pothier v. Stanley-Bostitch Company, 3411 CRLB-3-96-8 (Jan. 21, 1998), quoting Rogers v. Laidlaw Transit, 45 Conn. App. 204, 206 (1997).
When reviewing a trial commissioner’s decision, it is well established that this board “is obligated to hear the appeal on the record and not retry the facts. . . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999) (quotations omitted). The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. Id. “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it. . . .” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 349 (1999) (citations omitted).
It has long been held that in order for an injury to be compensable it must arise out of and in the course of the employment, not merely occur coincidentally with the employment. In Madore v. New Departure Mfg. Co., 104 Conn. 709, 713 (1926) our Supreme Court noted,
Before he can make a valid award the trier must determine that there is a direct causal connection between the injury, whether it be the result of accident or disease, and the employment. The question he must answer is, was the employment a proximate cause of the disablement, or was the injured condition merely contemporaneous or coincident with the employment? If it was the latter there can be no award made.
See also, McDonough v. Conn. Bank & Trust Co., 204 Conn. 104 (1987).
Here the commissioner read Dr. Landry’s reports and deposition testimony as saying the claimant’s problem were simply contemporaneous with his employment and and therefore, the commissioner concluded that the claimant’s cardiac condition did not arise out of and in the course of the claimant’s employment.
We therefore affirm the June 3, 2002 Finding and Dismissal of the Commissioner acting for the First District.
Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.