CASE NO. 5132 CRB-5-06-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 30, 2007
BANTAM SUPPLY CO. INC.
OAK RIVER INSURANCE
The claimant was represented by David C. Leard, Esq., Manasse, Slaiby & Leard, 249 Winsted Road, P.O. Box 1104, Torrington, CT 06790.
The respondents were represented by David Kelly, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review1 from the August 17, 2006 Finding & Award of the Commissioner acting for the Fifth District was heard March 30, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.
JOHN A. MASTROPIETRO, CHAIRMAN. Last year we held in O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) that “[t]here are few principles of jurisprudence more fundamental than the principle that a trier of fact must be the one party responsible for finding the truth amidst conflicting claims and evidence.” The present case provides yet another example of this principle. The claimant presented evidence that his present back condition was the result of a compensable injury suffered some years ago while in the employ of the respondent-employer. The respondents presented evidence to the contrary. The trial commissioner concluded the claimant met his burden of proof. We believe this matter amounts to a dispute over the weighing of evidence and are compelled to uphold the trial commissioner on appeal.
The facts concerning this appeal are as follows. The claimant was employed by the respondent in August 2000 in their propane gas delivery business. On August 14 he had to move several 55 gallon drums of waste oil, each weighing about 200 pounds, to a storage location. The claimant was unaware of any injury until the next day, when he testified he could not get out of bed due to excruciating pain. That day he was examined by his primary care physician, James O’Halloran, to whom he presented his work history of the prior day. The claimant was referred by Dr. O’Halloran to Dr. Leonard Kocis and Dr. Lane Spero.
The claimant also notified a managerial employee of the respondent, and its president, Peter Aziz, as to the incident. The respondents denied liability for this accident, but accepted a subsequent back injury the claimant suffered on June 15, 2001, to which a Voluntary Agreement has been approved. Dr. Lane Spero performed a discectomy at L5-S1 on August 8, 2001, attributing the cause and need for the surgery to either the injury of August 2000 or to the injury of June 2001. The 2001 surgery provided only temporary relief to the claimant. In July 2002 Dr. Spero recommended a second surgery, with a spinal fusion.
The respondents had the claimant examined by Dr. Michael Karnasiewicz on September 13, 2002. Dr. Karnasiewicz opined that fusion surgery was an option but recommended treatment with a physiatrist initially. The claimant then received epidural injections from a physiatrist, Dr. Carbon, for which the respondents paid. During this period the claimant underwent vocational retraining under the auspices of the Commission’s Rehabilitation Services, enrolling for a one year program in computer technology at Porter & Chester Institute. This delayed his fusion surgery, which was delayed again when the claimant developed a serious heart condition requiring open heart surgery in March 2004. The claimant was not cleared for surgery by his cardiologist until April 27, 2005. At that time the respondents refused to authorize the surgery. They do not believe the claimant’s present back condition is the result of a work related injury.
The commissioner weighed the following medical evidence. The respondents have had two doctors examine the claimant, Dr. Karnasiewicz and Dr. MacEllis Glass. Dr. Glass opined the claimant would benefit from a “re-do” of his 2001 surgery. Dr. Karnasiewicz suggested a conservative approach for the initial phase of treatment consisting of physical therapy and possible epidural steroid injections, but believed a discectomy and fusion surgery would be appropriate. Dr. Karnasiewicz attributed the back condition to the June 15, 2001 accident. Dr. Spero, the treating physician, is interested in performing the fusion surgery. He attributes the need for this surgery to the August 2000 injury.
Based on the evidence presented, the trial commissioner concluded that the claimant suffered a work related injury on August 14, 2000 which was aggravated by the compensable June 15, 2001 injury. He found the need for surgery was rooted in the 2000 work related injury, and found the respondents responsible for ongoing medical treatment and surgery prescribed by Dr. Spero. The respondents filed a Motion to Correct, seeking to add information about the claimant’s employment subsequent to working for the respondents and challenging Dr. Spero’s testimony. The trial commissioner denied this motion and this appeal ensued.
The respondents have advanced a number of reasons for appeal. They assert the claimant failed to meet his burden of proof the need for surgery was due to a work related injury and contest that the claimant was injured in 2000. They also argue that the trial commissioner improperly ignored the material evidence included in their Motion to Correct. We are not persuaded by these arguments.
We deal first with the issue concerning the trial commissioner finding the claimant suffered a work related injury on August 14, 2000. This constitutes a pure finding of fact which is not amenable to appellate review unless the trial commissioner lacked evidence to reach this finding. “We may not retry a case on appeal and substitute our own findings for those of the trier.” Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007) citing Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000). The trial commissioner was entitled to believe the claimant’s testimony on this issue. We reached this conclusion in Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007) “[t]he trial commissioner herein believed the claimant. It was his prerogative to do so.”2
Even when a trial commissioner accepts the claimant’s testimony as to the existence of a compensable injury, the claimant still must present expert testimony linking his medical issues to the compensable injury. The respondents correctly point out the precedent in Dengler v. Special Attention Health Services, 62 Conn. App. 440 (2001) stands for this principle. We however, believe this situation is akin to Berube, supra; as sufficient competent evidence was submitted to support the claim.
The trial commissioner specifically references the medical evidence of Dr. Glass, Dr. Karnasiewicz and the treating physician, Dr. Spero. Two physicians opined as to an August 2000 workplace injury. Dr. Glass stated in his July 30, 2001 report, “[i]t is reasonably probable that the disc herniation relates to this patient’s heavy exertional activity occasioned by his employment at Bantam Supply Company.” His report mentioned only an August 2000 date of injury. Claimant’s Exhibit D. The other physician reached a similar conclusion. Dr. Spero’s August 28, 2000 medical report identifies a herniated disc and associates it with lifting oil drums “approximately 2 weeks ago.” Claimant’s Exhibit A. In his November 7, 2005 deposition Dr. Spero testified as to the claimant’s current spinal problem “[i]t’s the same problem. It’s the same problem that he originally had.” Claimant’s Exhibit B, p. 29.
[W]hen the board reviews a commissioner’s determination of causation, it may not substitute its own findings for those of the commissioner . . . . A commissioner’s conclusion regarding causation is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law. Dengler, supra, 451.” (Internal citations omitted) Berube, supra.
Having concluded that the evidence presented to the trial commissioner and cited in his Finding and Award supports his actions, we must turn to the other claims of error. The respondents argue that material evidence was omitted from the Finding and Award and that the trial commissioner did not properly credit Dr. Spero’s testimony. We do not believe either issue changes the outcome of this decision.
The respondents presented a videotape of the claimant’s activities and the testimony of an investigator who observed the claimant. This evidence was admitted on the record, but was not cited in the trial commissioner’s findings. We note that we have previously upheld a trial commissioner who disregarded surveillance evidence and ruled in favor of the claimant. Gerena v. Rockbestos Company, 14 Conn. workers’ Comp. Rev. Op. 394, 1986 CRB-5-94-3 (October 17, 1995). “A Motion to Correct also may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings.” Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). We will infer that the trial commissioner found the medical evidence supporting the claim of material value and the surveillance evidence of less probative value. We believe that he was within his prerogative to do so. Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (December 17, 2003).
The respondents also argue that the testimony of Dr. Spero supports their theory that the claimant’s present need for surgery is related to events subsequent to the claimant having left the respondent’s employ. They also claim that Dr. Spero did not opine that the latest disc herniation was linked to the original accident. The trial commissioner did not share this opinion and we will ascertain if that was a reasonable conclusion.
We believe this situation is indistinguishable from Goldberg, supra,
[t]he commissioner’s plenary factfinding authority provides him with a great deal of latitude in evaluating the evidence. He is not required to regard any particular statement as probative, even if it is apparently uncontradicted, nor is he required to deem any particular witness unpersuasive just because her remarks contain inconsistencies or uncorroborated assertions that tend to further her own interest.
Similar to Goldberg, the respondents have seized on alleged inconsistencies in the witness’s testimony to support their view of the case. For example, they state Dr. Spero testified he did not know why the claimant suffered a recurrence of the disc herniation.
Dr. Spero did testify “I don’t know” when asked as to the cause of the recurring disc herniation. Claimant’s Exhibit B, p. 16. However, he also testified the current disc problem was “the same problem. It’s the same problem he originally had.” Claimant’s Exhibit B, p. 29. Dr. Spero also testified “clearly the work injury of 2000 is the substantial factor in bringing about his need for surgery.” Claimant’s Exhibit B, p. 37. He also agreed that “there’s no other substantial factor causing the need for the proposed surgery.” Claimant’s Exhibit B, p. 43. Finally, when asked about the claimant’s current medical condition, he said “I think it is the same injury, I guess you can call it a complication of the same injury.” Claimant’s Exhibit B, p. 46.
The respondents evidently believe that the trial commissioner should have credited those statements of Dr. Spero supportive of their position and disregarded that testimony supportive of the claimant. The respondents are mistaken in believing the trial commissioner disregarded Dr. Spero’s testimony in toto; rather, it appears he credited the testimony of Dr. Spero which unequivocally linked the compensable injury with the current disc herniation. This is a decision within his discretion. “We have held that it is within the discretion of the trial commissioner to accept some, but not all, of a physician’s opinion.” Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006). Since Dr. Spero clearly identified the 2000 injury as the “substantial factor” causing the claimant’s need for surgery, Dixon v. United Illuminating Co., 57 Conn. App. 51, 60 (2000), we find no error.
We believe in general the respondents’ arguments mirror the same approach we rejected earlier this year in Huertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007). We sustain the trial commissioner in this case based on the same reasoning.
The gravamen of the respondents’ argument is the trial commissioner “relied on certain facts while omitting others.” Respondents’ Brief, p. 6. This is akin to the argument we rejected in Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006) that the volume of evidence presented was paramount. “All judgments of evidentiary credibility are left solely to the trial commissioner, who is charged with deciding which of the documentary exhibits and witnesses are the most believable.” Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).” Prescott v. Community Health Center, Inc., 4426 CRB 8-01-8 (August 23, 2002). “. . . We believe this issue is one of those ‘prototypical questions of fact’ which limits the scrutiny we may apply on review.”
We believe the trial commissioner’s Finding and Award in this matter is grounded in competent evidence. Accordingly, we affirm the trial commissioner and dismiss this appeal.
Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.
1 We note that a postponement was granted during the pendency of this appeal. BACK TO TEXT
2 Counsel for the claimant argues the respondents did not brief this issue and it should be considered abandoned. We believe the respondents did address this in Section III of their brief. Nonetheless, whether this issue was preserved or not, we find it unpersuasive. BACK TO TEXT