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Wilbor v. Town of Glastonbury Board of Education

CASE NO. 4927 CRB-8-05-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 12, 2006

MICHAEL WILBOR

CLAIMANT-APPELLEE

v.

TOWN OF GLASTONBURY BOARD OF EDUCATION

EMPLOYER

and

CIRMA

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Allan Rothenberg, Esq., Rothenberg & Cianciola, L.L.C., 239 Silas Deane Highway, P.O. Box 290767, Wethersfield, CT 06129-0767.

The respondents were represented by Karen A. Acquarulo, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the February 23, 2005 Finding and Award of the Commissioner acting for the Eighth District was heard August 26, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the February 23, 2005 Finding and Award of the Commissioner acting for the Eighth District. They contend on appeal that the trier erred by finding that the claimant’s current cervical condition is related to an October 31, 2002 compensable low back injury. We find no error, and affirm the trial commissioner’s decision.

The claimant was employed as a maintenance worker for the respondent on October 31, 2002, when he slipped on a garbage bag and fell in the bed of a truck, striking his left side. He sought medical treatment at CorpCare the next day for complaints of pain from the top of his back through the left shoulder blade area, and also through the hip area and into his left leg. In a January 6, 2003 report by Dr. Galvin, his treating physician, it was noted that the claimant’s neck problems seemed to have gotten much worse from the time of his injury. The claimant testified that his neck problems began on October 31, 2002, and that he had experienced normal aches and pains prior to that date but had never sought medical treatment for them. In March 2003, the claimant was referred by Dr. Feingold, another treater, to Dr. Wakefield for an evaluation and cervical treatment. He was then diagnosed with degenerative changes and spondylosis. Dr. Wakefield subsequently recommended surgery for the cervical condition, the compensability of which has been denied by the respondents.

The claimant argued before the trial commissioner that, absent evidence of a prior neck injury and considering the history of neck and left arm pain that is contained in the medical reports, he had sustained his burden of proving a connection between the October 31, 2002 fall and his current cervical condition. As grounds for denying the claim, the respondents stressed that both the First Report of Injury and the claimant’s Form 30C only mention a low back injury. They also cited other discrepancies in medical reports, and an indication of degenerative changes in a May 9, 1998 cervical x-ray.

The trial commissioner found that the claimant’s testimony was credible and persuasive. While some tests indicated degenerative changes and spondylosis in his cervical spine, he had been asymptomatic prior to the October 31, 2002 fall. The trier then wrote, “Common knowledge and ordinary human experience lead to the inescapable conclusion that the October 31, 2002 fall caused or was a significant contributory factor to the claimant’s current cervical condition and need for treatment.” Findings, ¶ 8. He consequently ordered the respondents to accept the cervical injury and the recommended surgery as compensable, from which decision they have filed this petition for review.

We remind the respondents that the trial commissioner serves as the sole finder of fact in a workers’ compensation case. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). It is his or her duty to determine which, if any, of the medical evidence and lay testimony is credible. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). In doing so, the trier may credit all, part or none of a particular person’s testimony, and may resolve inconsistencies within testimony in whatever way he or she finds plausible. Tartaglino, supra; Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003).

On review, this board may not retry a case by second-guessing the inferences that the trier has drawn from the evidence. Duddy, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). Rather, we review the findings to determine whether there is evidence in the record to support them, and whether the trier has omitted undisputed facts from the findings that would affect the outcome of the case. Duddy, supra; Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). Here, the claimant bore the burden of proving that his cervical condition and need for treatment were related to his compensable injury, in which regard the trier stated he was basing his decision upon common knowledge and ordinary human experience as well as the inferences drawn from the medical evidence. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Garofalo v. Jarvis Products Corp., 4249 CRB-8-00-6 (September 12, 2001). We find on review that the evidence in the record was sufficient to support the trier’s finding that the claimant met that burden, including the totality of the medical evidence, which sufficed to establish the occurrence of increased symptoms in the claimant’s cervical spine following his compensable injury.

In trying to establish that the evidence demanded a finding that the claimant’s cervical condition preexisted his October 31, 2002 injury, the respondents ask this board to focus on discrepancies in the claimant’s testimony. They cite the absence of any mention of a neck injury in the claimant’s November 1, 2002 First Report of Injury and his November 6, 2002 Form 30C, both of which mention only the lower back. However, the initial report from CorpCare on the day following his injury describes “new onset back and left arm discomfort.” Claimant’s Exhibit B. The report also notes, “Neck is supple and patient has full range of movement of the neck without discomfort. There seems to be a mild vague muscular tenderness in the left upper arm. This reproduces the pain the patient is feeling.” Id. The reporting doctor at CorpCare characterized this symptom as a “left arm strain.” Id. The November 4, 2002 CorpCare report states that “the patient reports arm pain has gone away completely. His arm is ‘fine.’” Id.

The claimant explained in his testimony that he quickly decided to downplay his left arm symptoms while he was treating at CorpCare for his lower back, because their method of treating the arm injury was painful to him. July 15, 2004 Transcript, p. 14. Instead, he testified that he took Ibuprofen for those symptoms, which included numbness and shooting pain. Id. A few weeks later, the claimant’s cervical symptoms began to worsen, as demonstrated by the reports of Dr. Galvin and the claimant’s testimony. From that point on, his pain was chronic. Transcript, pp. 26-28.

When the claimant underwent a cervical spine x-ray on November 27, 2002, the report from Dr. Galvin noted “chest and neck pain [due] to spondylosis” at C5-6 and C6-7. Respondents’ Exhibit 5. Evidence of a neck condition had existed for a while: a May 8, 1998 report from Dr. Opalacz (at the request of Dr. Galvin) in response to the symptom of left neck pain noted moderate degenerative disc disease at C5-6, and also prominent transverse processes to the C7 vertebra. Respondents’ Exhibit 3. As of December 3, 2002, Dr. Galvin assessed the claimant with “spondylolysis, cervical spine, slowly increasing,” to which he attributed the claimant’s right shoulder chest discomfort. Claimant’s Exhibit C. The first express mention of the claimant’s work injury by Dr. Galvin was on January 6, 2003, when he stated that the claimant was seeing him because of neck problems. The claimant recalled being injured in September 2002, after which his neck problems were much worse. Id. The doctor observed pain in the neck and shoulders, and stated that the claimant’s neck was not recuperating appropriately. Id. He also noted that the claimant’s work was “heavy and unpredictable at times. He sometimes moves materials weighing several hundred pounds.” Id.

Dr. Galvin referred the claimant to Dr. Feingold, who noted that the claimant had fallen in a flatbed truck several months earlier, and was now complaining of pain in his neck and the back of his skull. Dr. Feingold observed a reduced range of motion in the neck, with x-rays showing significant degenerative disc disease and spondylosis in the cervical spine. Id. In the history section of his report, he noted “intermittent numbness and pain in the arms and hands of approximately a year’s duration.” Id. When Dr. Feingold referred the claimant to Dr. Wakefield in March 2003 for a cervical spine evaluation, he did not mention a work injury, noting instead that the cervical MRI showed multi-level degenerative disease. Id. Based on these reports, the respondents urge that the claimant’s cervical symptoms preexisted his September 2002 injury, and are unrelated to that incident.

The respondents also cite the claimant’s acknowledgment on cross-examination that he had experienced problems with his arms and hands off and on “for the entire year.” Brief, p. 9, citing Transcript, pp. 45-46, 56-57. They bring up Dr. Wakefield’s evaluation of April 2, 2003, which notes, “the patient stated that approximately four months ago he fell in the back of a pickup truck, striking the back of his head and shoulders. Since that time he says that the symptoms seem to be worse.” Claimant’s Exhibit D. The respondents suggest that there are important discrepancies between that report and the claimant’s alleged injury, which the claimant was not able to explain.

Considering that the claimant’s injury had taken place five months and two days prior to his initial examination with Dr. Wakefield, the doctor’s description of an injury “approximately four months ago” is reasonably close. Further, Dr. Wakefield’s October 14, 2003 report states that the claimant fell off the back of a truck at work, and had lower back pain, while also developing neck pain and left arm pain. This history is consistent with that given by the claimant in his testimony. The trier did not commit error by finding credible the claimant’s testimony as to the circumstances of his injury.

Also, it was reasonable for the trier to find that the claimant did not experience significant problems with his cervical spine prior to his compensable injury. The 1998 report of Dr. Opalacz indicates that the claimant had experienced some pain at that point, but there is no evidence that his condition was serious enough to require surgical intervention until after the October 31, 2002 injury. That incident produced new symptoms in the claimant’s arm, which he reported to CorpCare the following day. Further symptoms then manifested in the claimant’s neck. With regard to the claimant’s testimony regarding his subjective symptoms, he was competent to testify on that matter, and the trier found that testimony credible. Thus, though one should not ignore the pre-existing spondylosis, it was not producing symptoms prior to October 31, 2002. Therefore, the trier reasonably found that the claimant’s post-injury neck condition was causally connected to the 2002 compensable injury.

The trial commissioner’s decision is accordingly affirmed. With regard to any of the claimant’s benefits that have remained unpaid pending the resolution of this appeal, the respondents are ordered to pay interest as required by § 31-301c(b) C.G.S.

Commissioners Michelle D. Truglia and Leonard S. Paoletta concur.

Workers’ Compensation Commission

Page last revised: May 19, 2006

Page URL: http://wcc.state.ct.us/crb/2006/4927crb.htm

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