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Cooper v. McDermott Chevrolet

CASE NO. 4833 CRB-3-04-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 21, 2005

MARK COOPER

CLAIMANT-APPELLEE

v.

McDERMOTT CHEVROLET

EMPLOYER

and

CENTURY WORKERS’ COMP. CLAIMS

INSURER

RESPONDENTS-APPELLANTS

and

UNIVERSAL UNDERWRITERS INS. CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Clifford Comerford, Esq., Tynan & Iannone, 250 Wolcott Rd., Wolcott, CT 06716.

The respondent employer and Century Workers’ Compensation Claims were represented by Andrew Hern, Esq., 221 Main Street, 5th Floor, Hartford, CT 06106.

The respondent employer and Universal Underwriters Ins. Co. were represented by Brian L. Smith, Esq., D’Attelo, Shields & La Bella, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067.

These Petitions for Review from the July 16, 2004 Finding and Award of the Commissioner acting for the Third District was heard February 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. Both of the respondent insurers in this matter, Century Workers’ Compensation Claims [hereinafter Century] and Universal Underwriters Insurance Co. [hereinafter Universal] have petitioned for review from the July 16, 2004 Finding and Award of the Commissioner acting for the Third District.1 Here on appeal, they raise challenges to the timeliness of the trial commissioner’s decision and the sufficiency of the evidence supporting the trier’s finding of compensability. Century also contends that this claim does not implicate its period of insurance coverage. We find error, and reverse the trial commissioner’s decision.

The trial commissioner found the following facts. The claimant was working as a mechanic for the respondent McDermott Chevrolet when he injured his shoulder during the course of his employment on April 21, 2000. He underwent surgery on the shoulder in November 2000 and again in June 2001. On or about November 13, 2001, the claimant returned to light duty work with a 40-pound overhead lifting restriction. The claimant testified that, upon returning to his employment, he experienced a burning and numbness in both hands while reaching above his head to use an air ratchet. He also began to experience sensations of swelling, burning and numbness that would wake him from his sleep. His hands now “cramp or lock up” while he uses them to perform his work, and they go numb when he tries to write or perform other grip-related functions. Prior to November 2001, he experienced none of those symptoms, save an occasional paresthesis in his left hand. He began to take Tylenol and use hand braces as of November 2001.

The claimant’s treating physician, Dr. Moran, stated that the claimant had developed a “new problem” of bilateral hand numbness, which he diagnosed as bilateral carpal tunnel syndrome. Findings, ¶ 6. The trial commissioner then found that Dr. Moran prepared three separate reports concerning causation, “each so inconsistent with the other, as to render them all unreliable.” Findings, ¶ 7. The trier nonetheless found that the claimant’s other evidence was sufficient to establish an intensification of symptoms after his return to work in November 2001. He concluded that the claimant’s hand symptoms were substantially worsened by his employment with the respondent, and ruled that the bilateral carpal tunnel syndrome was compensable. Both insurers who were named as respondents in this matter filed timely appeals from the trier’s decision.

We begin by reiterating our standard of review as it applies to the issues before us. In a workers’ compensation matter, the claimant carries the initial burden of proving that he has sustained a compensable injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Garofalo v. Jarvis Products Corp., 4249 CRB-8-00-6 (September 12, 2001). The trial commissioner, meanwhile, retains exclusive discretion to evaluate the credibility of the evidence, including the testimony of lay witnesses and the expert opinions of physicians and other medical professionals. 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). The claimant must therefore offer evidence sufficient to persuade the trier of fact that his injuries arose out of and in the course of his employment. Garofalo, supra.

In some cases, the nature of an injury is relatively simple to determine from the point of view of an average layperson. Id.; Canevari v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001). For example, one does not have to be a medical professional to appreciate that a broken ankle may be caused by a fall from a ladder, or that a back sprain may be precipitated by the lifting of a heavy box. In such circumstances, a finding of compensability would not be contingent on the presence of a doctor’s opinion asserting that an injury is related to an alleged work activity within a reasonable degree of probability. Garofola v. Yale & Towne Mfg. Co., 131 Conn. 572, 574 (1945); Garofalo, supra. In other cases, the etiology of an injury or a disability is complex, and cannot be labeled a “matter of common knowledge.” Id., 574. In such cases, compensation cannot be paid unless a physician is able to state that there is a probable causal connection between the alleged injury and a claimant’s employment. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449 (2001); Garofalo, supra.

The claimant here sought a finding of compensability for his bilateral carpal tunnel syndrome, with symptoms of swelling, burning sensations, and numbness. He testified that these symptoms for the most part began after he had returned to work following a long absence for compensable shoulder surgery, although he had experienced an occasional paresthesis “like hitting a funny bone” in his left hand prior to November 2001. Findings, ¶ E. The medical evidence supporting this claim consists exclusively of reports from Dr. Moran, the treating physician. He stated in separate reports that the claimant’s carpal tunnel syndrome was due to the claimant’s employment “over the last two years” from 2000-2002, “and not the entire period of employment from October 1, 1997;” that it was due to “chronic repetitive strain in his years of working as a mechanic,” rather than to his shoulder injury; and that it began “1-2 years ago” (as of February 5, 2002). Claimant’s Exhibit A. The trial commissioner characterized these reports as being “each so inconsistent with the other, as to render them all unreliable.” Findings, ¶ 7. However, he went on to cite the “claimant’s credible evidence as to the intensification of his symptoms after his return to work” as a basis for finding the bilateral carpal tunnel syndrome compensable. Findings, ¶ 8.

A determination of whether a claimant suffers from bilateral carpal tunnel syndrome and its causal relationship to employment strikes us as a matter that does not fall within the realm of common knowledge. In the instant matter the trial commissioner determined that the medical opinion supporting the claim was without credibility. Without a supporting medical opinion, the conclusion derived, i.e., the claimant suffered from bilateral carpal tunnel syndrome which arose out of and in the course of his employment cannot stand. We therefore reverse the conclusion of the trial commissioner as it is without legally competent evidence. Dengler, supra.

The issue raised by the respondents as to whether the trial commissioner failed to comply with § 31-300’s requirement that a decision be issued within 120 days need not be decided given the conclusion we reach today.

We therefore reverse the July 16, 2004 Finding and Award of the Commissioner acting for the Third District.

Commissioners Stephen B. Delaney and Michelle T. Truglia concur.

1 We note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT

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