CASE NO. 4933 CRB-2-05-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 15, 2006
NINA M. LENTINI
The claimant was represented by Lori M. Comforti, Esq., 12 Case Street, Suite 203, P.O. Box 1126, Norwich, CT 06360.
The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review from the April 5, 20051 Finding and Dismissal of the Commissioner acting for the Second District was heard October 14, 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 claimant, Nina M. Lentini, appeals from the April 5, 2005 Finding and Dismissal of the Commissioner acting for the Second District finding that the claimant had failed to prove that she was disabled as a result of repetitive motion injuries sustained at her place of employment.
Ms. Lentini’s claims are as follows. She has been employed in the media relations department of Connecticut College since 1999 in a post that required heavy use of a computer keyboard. Findings, ¶¶ 2-7. She began exhibiting symptoms of elbow pain in November 2002 when she carried a Christmas tree into her house. Findings, ¶¶ 8-10. She reports that her pain increased after returning to work. She starting treating with Dr. Liliana Galan on December 19, 2002 and was referred to Dr. Patricia Stuart in January 2003. Findings, ¶¶ 13-15. Dr. Stuart diagnosed right lateral epicondylitis in the elbow. Claimant’s Exhibit E. The claimant was then examined in September 2003 by a chiropractor, Dr. Lynn Carnaroli, after the claimant complained of pain occurring after she carried a ladder and did some painting at her residence. Dr. Carnaroli opined that the claimant’s right tennis elbow was a result of her repetitive work on the computer. Findings, ¶¶ 19-20.
The claimant was later examined in October 2003 by Dr. William Cambridge. Dr. Cambridge opined that the right tennis elbow was a job related injury, but had not been advised of the initial onset of pain during household activities around Thanksgiving 2002. Dr. Cambridge was later advised of this incident, and offered an opinion that the pain was a reoccurrence of job related epicondylitis. Findings, ¶¶ 22-24. She also was examined by Dr. William Balcom in October 2003, who suggested surgery on her right elbow. Findings, ¶¶ 21.
The respondents had the claimant examined by their own doctor, Dr. Ashmead in December 2004. Dr. Ashmead concluded that the right lateral epicondylitis could not be attributed to her employment related computer work, as this work was not sufficiently stressful to cause the condition. He attributed the initial onset of symptoms to the holiday decorating she did in 2002. Findings, ¶¶ 27-30. Respondents’ Exhibit 1.
At the formal hearing, the trial commissioner found Dr. Ashmead the more credible medical witness and determined her injuries were not job related. He further reviewed the contemporaneous medical notes of the claimant, and determined they did not support a progressive worsening of pain symptoms, her work activities hence did not rise to a level of an aggravation or injury. He dismissed the claim.
The claimant’s appeal is centered upon the position that the trial commissioner should have found that the claimant’s job duties led to the aggravation of a pre-existing condition in her elbow that worsened her pain, hence rising to the level of an aggravation or injury. She cites our opinion in Seeger v. Naugatuck, 15 Conn. Workers’ Comp. Rev. Op. 240, 2220 CRB-5-94-11 (May 9, 1996) and the Appellate Court’s opinion in Epps v. Beiersdorf, 41 Conn. App. 430 (1996) as supportive of her position.
The rationale behind the Seeger decision does have some relevance to this case. In Seeger, the claimant produced a treating physician who testified his edema was aggravated by his job as a patrolman. The trial commissioner had another doctor examine the claimant, who could not determine the etiology of the edema, but did connect work requiring standing or sitting for long periods of time with aggravating such a condition. The trial commissioner denied a Motion to Correct that the claimant had not proven the causation of his edema was job related. We upheld the trial commissioner’s decision to credit the claimant’s medical evidence, “the medical evidence in this case is sufficient to support the trial commissioner’s conclusion that the claimant’s disability was related to his employment.”
The Appellate Court decision in Epps, however, explains why a different result was reached in this case. In Epps, there was uncontradicted medical testimony that the claimant had suffered an aggravation to a pre-existing condition due to exposure to industrial chemicals. “[W]e conclude that the record contains no evidence on which the commissioner could have reasonably relied in determining that the plaintiff’s exposure to chemicals while employed as a compounder did not aggravate his preexisting respiratory condition.” Epps, supra, 434.
Dr. Ashmead’s report of December 14, 2004 clearly is unsupportive of the claimant’s scenario that the tennis elbow was a compensable work related injury. “I do not believe that the patient’s right lateral epicondylitis can be attributed to her computer work.” His explanation, which was adopted by the trial commissioner, was “the involved activities are not sufficiently stressful to cause lateral epicondylitis.” Respondents’ Exhibit 1.
Therefore, unlike Epps, id, the trial commissioner had medical evidence presented on which he could have relied in finding the computer work did not either create or aggravate her lateral epicondylitis. Similar to Seeger, the trial commissioner was presented with conflicting medical evidence; but unlike that case, here he found the respondents’ witness more credible.2
In Findings, ¶ F, the trial commissioner made the affirmative finding that since the claimant’s elbow problem did not appear to be increasing in a progressive fashion, the requisite basis for work related stress aggravating a pre-existing or latent condition did not exist. A review of the medical evidence presented indicates substantial and uncontested evidence was presented from which the trial commissioner could have determined that household injuries, not work related repetitive trauma, were the proximate cause of the claimant’s lateral epicondylitis and created the exacerbation of its symptoms.
The claimant’s symptoms intensified in the autumn of 2003, necessitating her taking time off from work. See Claimant’s Exhibit A, Dr. Carnaroli’s Family and Medical Leave Act authorization. Since Dr. Carnaroli’s 9/24/03 medical report indicates the claimant identified this pain as associated with carrying a ladder and painting at her home, see Claimant’s Exhibit A and January 4, 2005 Transcript, pp. 36-37; substantial evidence exists in the record to support Findings, ¶ F.3
The burden of proof in a Workers’ Compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001). In this matter, conflicting medical evidence was presented to the trial commissioner. Where the medical opinions are in conflict, the trial commissioner’s determination must stand so long as there is evidence to support it. Carney-Bastrycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004). In this matter, the trial commissioner chose not to credit the claimant’s medical evidence as to causation. As previously noted, the commissioner’s review of the facts led to his conclusion the claimant’s employment was not the source of the aggravation to her elbow. The power and duty of determining the facts rests with the commissioner, the trier of facts, Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457 78 A2d 339 (1951). The conclusions drawn by him from the facts must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 603 (1993).
The trial commissioner simply determined the claimant failed to meet her burden of proof. As the trial commissioner is uniquely able to determine the credibility of both factual and expert witnesses, we are bound to uphold his findings.
The Finding and Dismissal of April 5, 2005 is herein upheld.
Commissioners Stephen B. Delaney and Michelle D. Truglia concur.
1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT
2 The claimant correctly identifies that in Seeger, we held “substantial aggravation of a latent or pre-existing condition by employment activity is sufficient to establish compensability of the injury.” In this case however, the trial commissioner credited medical testimony the claimant’s elbow was not, substantially aggravated by employment activity, and made specific reference to contemporaneous medical notes. BACK TO TEXT
3 Accordingly, the trial commissioner properly denied the claimant’s Motion to Correct, which sought to adopt claimant’s theory of a work-related aggravation to an existing injury. BACK TO TEXT