CASE NO. 4864 CRB-3-04-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 26, 2006
FIRST NATIONAL SUPERMARKETS, INC.
TRAVELERS PROPERTY & CASUALTY
ADAM’S SUPER FOOD STORES
ROYAL & SUNALLIANCE
UTICA MUTUAL INSURANCE CO.
The claimant was represented by Tara Chiarelli, Esq., 324 Kings Highway, North Haven, CT 06473.
The respondents First National Supermarkets, Inc. and Travelers Property & Casualty were represented by Richard Aiken, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
The respondents Adam’s Super Food Stores and Royal SunAlliance were represented by William Brown, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
The respondents Adam’s Super Food Stores and Utica Mutual Insurance Company were represented by Randall Avery, Esq., Avery, Crone & Cassone, 25 Third Avenue, Stamford, CT 06905.
This Petition for Review from the September 2, 2004 Finding & Award of the Commissioner acting for the Fourth District was heard November 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.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents-appellants represent the interests of the employer, First National Supermarkets and Travelers Insurance. The appellants appeal from the September 2, 2004 Finding and Award of the Commissioner acting for the Fourth District.1 In that Finding and Award the trial commissioner concluded the claimant’s lower back symptomatology was the result of a compensable injury occurring January 13, 1992 while in the employ of First National Supermarkets [hereafter First National].
The pertinent facts are as follows. The claimant was employed by the respondent First National from December 1980 until November 16, 1996. On January 13, 1992 the claimant injured his back while fixing a rug on the employer’s premises. The injury was accepted and referenced in a Voluntary Agreement approved August 23, 1995. The claimant left his employment with First National and for the period between November 16, 1996 and January 18, 2001 the claimant worked for Adam’s Super Food Stores serving in the capacity of a floral manager and a produce manager. Between January 22, 2001 and November 8, 2003, the claimant was employed by the Ergonomic Group, and on November 10, 2003 began his employment with Oxford Health Plan where his employment continues.
The claimant sought compensation benefits for his lower back. Proceedings were held before the commissioner acting for the Fourth District. The commissioner concluded that as of January 2002 the claimant’s lumbar spine symptoms were causally related to the claimant’s January 13, 1992 compensable injury. The respondents, First National and Travelers, filed this appeal.
The respondents-appellants raise the following issues on appeal; (1) whether the trial commissioner erred in concluding the occurrence of claimant’s lower back symptomatology after January 1, 2002 was solely related to the accepted injury of January 13, 1992 and (2) whether the trial commissioner erred in failing to conclude the claimant’s back symptoms following January 1, 2002 were related to acts of repetitive trauma occurring after the January 13, 1992 injury.
The appellants argue the evidence does not support the conclusion reached by the commissioner. In paragraphs E and F the trier found the opinions, reports, and testimony of Dr. Luchini and Dr. Dickey fully credible. However, the commissioner found Dr. Luchini’s opinions fully credible and persuasive, yet his conclusion ignores portions of Dr. Luchini’s testimony and other aspects of his opinion.
It is axiomatic that a commissioner acts as the fact-finder in Workers’ Compensation proceedings. In that capacity the commissioner assigns the weight and credibility to be accorded the evidence presented. As this tribunal noted in Claudio v. Better Bedding, 4786 CRB-1-04-2 (October 19, 2005) appeal docket no AC 27082 (Nov. 7, 2005)
[A]long with the power of assessing the weight and credibility of the evidence the trial commissioner has the power to resolve evidentiary inconsistencies. The trial commissioner “may give credit to all, part or none of the testimony given by a lay or expert witness, while also retaining the authority to reject evidence that superficially may appear to be uncontradicted.” Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003 [aff’d, 82 Conn. App. 905 (2004) (per curiam).]
We do not think the trial commissioner’s rejection and acceptance of portions of Dr. Luchini’s opinion constitutes legal error. Dr. Luchini testified he became the claimant’s treating physician in 1994. He also testified that in 1996 he provided the claimant with a work restriction of lifting no more than 20 pounds on the basis, “It was my impression that if he continued in an occupation that would involve heavy lifting . . . would more probably than not cause a deterioration of that current condition with respect to his lower back.” See October 22, 2002 Deposition pp. 8-9, Respondent’s Exhibit 1. Dr. Luchini then testified in pertinent part:
I reviewed his deposition, and on page 14 of the deposition he indicates that he would lift plants that were in potting soil that usually weighed between 30 and 35 pounds . . . . So he -- from my review of his deposition, he indicated that he was lifting at times what he describes as 25 to 35 and occasionally 50 pounds . . . . This lifting . . . occurred when he was employed at the Adam’s Company as a floral manager . . . .[F]rom the history the patient gave me and from his deposition, from a period of time from 1996 until 2001, he was still working in an occupation that required periods of lifting, and I think it’s reasonable to assume that that period of employment from 1996 to 2001 where he was involved in an occupation that involved physical manual labor, that contributed to his current condition or the deterioration of his lumbar disc injury.
Id., p. 10-12
However, the claimant testified that following his January 1992 back injury he suffered periods of aggravation and flare-ups. The claimant’s usual manner of handling such periods of exacerbations was to self-treat through the use of a hydrocollator and over the counter remedies. The claimant also noted that following each flare-up he generally returned to a baseline of no pain. The claimant also stated that his flare-ups of lower back complaints most often followed instances of twisting and/or bending and were not always precipitated by lifting. See February 5, 2004 Transcript pp. 16-17, 33, 40-41.
The claimant is seeking benefits for the period after January 1, 2002. From January 22, 2001 through the present the claimant has been employed as a computer programmer, a job which is more sedentary in nature than his previous positions with First National and Adams. The claimant did not seek treatment from Dr. Luchini for approximately four and a half years and resumed treatment with Dr. Luchini in March 2002.
The claimant contends that in December 2001 while at home he experienced another aggravation of his back when he attempted to rise from a seated position. Following that experience the claimant was absent from work for about a week and sought medical treatment with Dr. Luchini. When one reviews the testimony of the claimant, which the trial commissioner also found fully credible and persuasive, together with the opinions of Dr. Luchini, it appears the conclusion reached by the trial commissioner is legally proper. It is the role of the commissioner to determine factual findings in the presence of conflicting evidence. The trial commissioner carefully considered the opinions of the expert witnesses but also took into account the testimony of the claimant and his recollection of his lower back problems.
We do not engage in de novo review. The trier’s findings and conclusions must stand unless contrary to law, without evidentiary support or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). The trial commissioner properly exercised his right to accept and reject portions of a witness’ testimony and reconcile same with other evidence presented. Thus, the trier 2's statement as to the credibility of Dr. Luchini’s testimony and reports is not inconsistent with his ultimate finding.
We therefore, affirm the September 2, 2004 Finding and Award of the Commissioner acting for the Fourth District.
Commissioners Stephen B. Delaney and Michelle D. Truglia concur.
1 We note that postponements were granted during the pendency of this appeal. BACK TO TEXT