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O’Connor v. Massachusetts Electric Construction Co.

CASE NO. 4734 CRB-2-03-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 4, 2004

JEROME O’CONNOR

CLAIMANT-APPELLEE

v.

MASSACHUSETTS ELECTRIC CONSTRUCTION CO.

EMPLOYER

and

SPECIALTY RISK SERVICES, INC.

INSURER

RESPONDENT-APPELLANTS

APPEARANCES:

The claimant was represented by Howard B. Schiller, Esq., 55 Church Street, P.O. Box 699, Willimantic, CT 06226.

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

This Petition for Review from the September 23, 2003, Finding and Award of the Commissioner acting for the Second District was heard July 30, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Massachusetts Electric Construction Co. and Specialty Risk Services, Inc., have appealed from the September 23, 2003, Finding and Award of the Commissioner acting for the Second District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. On December 16, 2000 the claimant was working as an electrician for the respondent Massachusetts Electric Construction Company at the Killingly Power Station. On that date the claimant was working inside a circuit breaker. He was painting the inside of the “gang box.” When the claimant exited the “gang box” to get more paint his right foot slid causing him to twist and feel pain in his lower back. There were no witnesses to the claimant’s alleged injury. However, the claimant did inform coworkers Anthony Pinto and Thomas Rutka of the incident. Mr. Pinto and Mr. Rutka both indicated that prior to lunch on that day the claimant was working without any signs of discomfort or difficulty, however, after the injury the claimant appeared to be in noticeable pain and had difficulty moving.

On Monday December 18, 2000 the claimant’s wife called the respondent-employer to report that the claimant was unable to attend work that day because of the work-related injury. The claimant recalled making several attempts to telephone his employer regarding the injury, however, he did not remember who he spoke to. The claimant never asked to speak to his supervisor, Greg Messier.

The claimant initially sought medical treatment for the alleged work-related injury on December 19, 2000 at the Family Medical Care Center in Springfield, Massachusetts. There is no reference in that medical report that the injury occurred at work, but the medical report does indicate that the claimant twisted his back four days prior. At that time the claimant was prescribed muscle relaxers, but was not taken out of work.

On December 26, 2000 the claimant went to Las Vegas, Nevada on a planned, prepaid vacation. On that date while he was checking into his hotel the claimant leaned over to catch a falling piece of luggage and began to experience low back pain. On December 27, 2000 the claimant sought medical treatment at the University Medical Center of Southern Nevada where he complained of two weeks of low back pain which was made worse by the flight to Las Vegas. At that time the claimant was diagnosed with a lumbar spine strain. There was no mention of a work injury in that medical report, however, there was a notation regarding claimant’s chronic low back pain.

After the claimant returned home from his vacation he again sought medical treatment for his back at Baystate Medical Center in Springfield, Massachusetts on January 3, 2001. The medical report from that hospital indicated the claimant had injured his back three weeks prior at home when he bent over to lift something. The report also indicated that while the claimant was on vacation in Las Vegas he experienced a sudden sharp pain across his lower back when he went to lift his suitcase.

On September 9, 2002 Dr. Myron Shafer performed an independent medical examination on the claimant at the respondents’ request. Dr. Shafer diagnosed the claimant with a lower back sprain and degenerative disc disease with nerve root irritation at the L5-S1 disk level. Dr. Shafer did opine that the irritation at the L5-S1 was not work related, however, he further indicated that “if the injury had occurred at work he sustained a back sprain.” Findings, ¶ 35.

The trial commissioner found on December 16, 2000 the claimant sustained an injury to his back which arose out of and during the course of his employment with the respondent-employer. The respondents filed a Motion to Correct the Commissioner’s findings which was denied. The respondents have appealed this award. The respondents contend the trial commissioner erred in failing to grant the Motion to Correct. Further, the respondents assert that there is no medical evidence in the record that could support a finding of a causal connection between the work-related accident and the back injury.

The trial commissioner is entitled to evaluate the medical and testimonial evidence presented, and decide which, if any, is the most credible. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). It is up to the commissioner to determine whether a claimant has offered sufficient evidence to establish an injury is work-related within a reasonable degree of medical probability. Id.; Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). On review, this board lacks the authority to retry cases by second-guessing the inferences that the trier has drawn regarding evidentiary credibility. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Duddy, supra. All we may do is review the findings of the trier of fact and decide whether there is any evidence in the record to support them or whether undisputed material facts have been omitted from the findings. Phaiah, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001).

In a workers’ compensation case, the claimant has the burden of proof to show the injury was causally connected to the workplace, and to do so via competent evidence. Keenan v. Union Camp Corporation, 49 Conn. App. 280, 282 (1998). In certain circumstances the cause of an injury may be proven without the existence of any medical testimony, but through knowledge of ordinary human experience. Garofola v. Yale & Towne Mfg. Co., 131 Conn. 572, 574 (1945); Garofalo v. Jarvis Products Corp., 4249 CRB-8-00-6 (September 12, 2001). In Garofola, supra, the Appellate court said, “It may be said to be a matter of common knowledge that heavy manual labor that ordinarily results in no in effect may on occasion result in a strain or sprain of the muscles or ligaments.” Here the trial commissioner relied on the claimant’s testimony that he injured his back when he accidentally twisted it and the trier found the claimant’s testimony to be credible. This testimony was corroborated by the claimant’s co-workers who saw the claimant in pain after the alleged incident.

Dr. Shafer testified that the claimant had a strain of the lower back related to the incident where the claimant had trouble getting out of the circuit breaker. February 24, 2003 Deposition, pp. 13, 16. Dr. Shafer stated that if he accepted the claimant’s version of the events he could say with a reasonable degree of medical probability that the claimant’s injuries were related to the December 16, 2000 work injury. Id., p. 40. The only reason Dr. Shafer was not certain that the claimant’s injuries were work-related was that he noticed inconsistencies in the history of the injury in the claimant’s medical records. Id., p. 7.1 Due to these inconsistencies, Dr. Shafer testified he had no way of knowing for certain whether the claimant injured himself at work, therefore, he could not state within a reasonable medical probability that the strain was work related.2 Id. p. 17, 18.

When Dr. Shafer’s testimony is read in its entirety it is clear that Dr. Shafer opined that if the claimant did injure himself at work as he claimed then his injuries were work-related, however, if the claimant had injured himself at some other time or place the injuries may not have been work-related.

“Ultimately, reliance on a patient’s history is a common ingredient in diagnosing the cause of an injury.” Sprague v. Lindon Tree Service, Inc., 4460 CRB-2-01-11 (November 15, 2002), aff’d, 80 Conn. App. 670 (2003). Here, based on the history the claimant provided Dr. Shafer, the doctor opined the injury in question was work related. Furthermore, it is the trial commissioner’s duty to make credibility determinations. Dzialo v. B&B Industries, 4509 CRB-2-02-3 (March 5, 2003). The trial commissioner here found the claimant’s testimony to be credible, Findings, ¶ B, therefore it is a reasonable inference based on the claimant’s testimony and Dr. Shafer’s medical opinion that the alleged injury was causally related to the claimant’s employment. We will not second-guess the trial commissioner’s credibility determinations on appeal.

Therefore, we affirm the September 23, 2003, Finding and Award of the Commissioner acting for the Second District.

Commissioners A. Thomas White. Jr. and Charles F. Senich concur.

1 The Baystate Medical Center emergency room report of January 3, 2001 indicated that the injury occurred at the claimant’s home, rather than his work-place. Id. p. 7. BACK TO TEXT

2 The following is a portion of Dr. Shafer’s testimony from pages 16 through 17 of the February 24, 2003 deposition:

ATTORNEY STATILE: Now you mentioned there being some lack of support in the medical documentation—

DR. SHAFER: Yes.

ATTORNEY STATILE: —for his allegation that this happened at work. Is that correct?

DR. SHAFER: Right.

ATTORNEY STATILE: And I think you referenced there being a report indicating that he had told the examiner in that report that he had injured himself at home. Is that correct?

The exchange continued on page 17 of the deposition as follows:

DR. SHAFER: I think it was written that way, yes.

ATTORNEY STATILE: Obviously, you were not present with him on December 16, 2000. Correct?

DR. SHAFER: No.

ATTORNEY STATILE: So you only saw him the one time?

DR. SHAFER: Yes.

ATTORNEY STATILE: And again, you have no way of knowing whether, in fact, he did actually injure himself at work as he told you at the time of your examination of him or whether perhaps his injury actually happened at home. Is that also correct?

DR. SHAFER: Right.

ATTORNEY STATILE: So you cannot state with a reasonable medical probability that the strain of the low back that you diagnosed would have been work related? Correct?

DR. SHAFER: Right. span class="back">BACK TO TEXT

Workers’ Compensation Commission

Page last revised: December 13, 2004

Page URL: http://wcc.state.ct.us/crb/2004/4734crb.htm

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