CASE NO. 5256 CRB-3-07-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 1, 2008
YALE NEW HAVEN HOSPITAL
The claimant was represented by Christopher DePalma, Esq., Kennedy, Johnson, D’Elia & Gillooly, 555 Long Wharf Drive, 13th Floor, New Haven, CT 06511.
The respondent was represented by Neil Ambrose, Esq., Letizia, Ambrose & Falls, P.C., One Church Street, New Haven, CT 06504.
This Petition for Review from the July 19, 2007 Finding and Award of the Commissioner acting for the Third District was heard February 29, 2008 before a Compensation Review Board panel consisting of Commissioners Ernie R. Walker, Charles F. Senich and Amado J. Vargas.
ERNIE R. WALKER, COMMISSIONER. The respondent appeals from the July 19, 2007 Finding and Award of the Commissioner acting for the Third District. In that Finding and Award the trial commissioner concluded that on September 27, 2002 the claimant suffered a compensable injury to her lumbar spine. The trial commissioner also concluded that the claimant’s failure to file a timely written notice of claim did not bar her claim as the claimant was furnished medical care. Thus, pursuant to § 31-294c(c) and the exception provided for the furnishing of medical care, the trial commissioner concluded the claim was not time barred.
The respondent filed this appeal and among the issues raised were; (1) whether the trial commissioner erred in concluding that the claimant’s need to file a written notice of claim was made unnecessary as she was furnished medical care and (2) whether the trial commissioner erred in concluding the claimant’s disability was compensable as it was predicated on illegal and illogical inferences and was an abuse of discretion. The pertinent facts are as follows. The claimant was employed by the respondent as a nurse. On September 27, 2002 the claimant was exiting a patient’s bathroom when the claimant slipped on liquid soap that had been spilled on the floor. According to the claimant when she fell her legs went straight out and she landed on her buttocks. In the course of her fall the claimant attempted to brace herself with both her hands.
The claimant immediately informed her superior, filled out an injury report and sought care at Personnel Health Services [PHS] a service provided by the respondent for its employees. At her initial visit to PHS the claimant complained of bruising, swelling and soreness in her wrists and thigh. The claimant did not include back pain among her initial complaints. The claimant testified that her lower back pain did not begin until the evening of the day of the injury.
The claimant was seen on six occasions between September 30, 2002 and November 13, 2002 and at none of these visits did the claimant mention back pain. Her first mention of back pain to PHS personnel was on a visit on March 11, 2003. At that visit the claimant described an incident that occurred while she was vacationing in Florida a few weeks earlier. According to the claimant she was filling a bathtub at the timeshare at which she and her husband were staying. As the claimant attempted to arise from filling the bathtub she felt a severe pain across her back and down her leg. The claimant proceeded to the kitchen where she lost consciousness. The claimant was taken by ambulance to Naples Community Hospital in Naples, FL. She was treated and released several hours later.
The trial commissioner found that over the years the claimant had sustained injuries to her back. One particular incident of note was a back injury that occurred in the 1970’s when a television at work fell on her. As a result of that incident the claimant underwent a laminectomy at the L4-5 spine level. Following that surgery the claimant suffered from back pain off and on. See September 21, 2006 Transcript, p. 27.
Upon her return from Florida the claimant visited PHS and informed them of her low back pain. It was noted that she “. . . seeks restoration of old WC injury. Considers OHS liable for her chronic L.B. condition.” Findings, ¶ 19, Claimant’s Exhibit A. At her visit to PHS on March 11, 2003, the claimant was examined by Dr. Mark Russi. The claimant gave a history of her prior back injuries and stated she was seeking eligibility for Workers’ Compensation benefits. On April 7, 2003 the claimant was again seen by Dr. Russi. Dr. Russi’s treatment notes reflected his statement “Will speak to WC group re: her case” Finding ¶ 21, Claimant’s Exhibit A.
Shortly after her return from her vacation the claimant saw Dr. Phillip S. Dickey. Dr. Dickey directed the claimant to undergo an MRI. Upon reviewing the MRI, Dr. Dickey noted the area of claimant’s prior back surgery and also noted a substantial disc herniation at L1-L2. Based on the MRI and the history provided by the claimant, Dr. Dickey opined that the September 2002 fall at work was a substantial factor in the L1-L2 disc herniation suffered by the claimant.
At the request of the respondent, the claimant was examined by Dr. Gerald Becker. In Dr. Becker’s opinion, the claimant’s September 2002 injury was self-limiting and the injury occurring in February 2003 while the claimant was filling a bathtub was an intervening injury. After reviewing the evidence, the trial commissioner concluded; (1) the claimant was furnished with medical care thereby tolling the statute of limitation for filing a written claim under § 31-294c(c), and (2) the claimant’s present L1-L2 disc herniation was compensable.
We begin with our consideration that the claim was not timely as no Form 30C was filed until more than one year passed from the day of the injury. Sec. 31-294c(c) provides in pertinent part:
Failure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings if there has been a hearing or a written request for a hearing or an assignment for a hearing within a one-year period from the date of the accident or within a three-year period from the first manifestation of a symptom of the occupational disease, as the case may be, or if a voluntary agreement has been submitted within the applicable period, or if within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d. No defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice. Upon satisfactory showing of ignorance and prejudice, the employer shall receive allowance to the extent of the prejudice. (Emphasis ours).
The record clearly indicates the claimant sought medical treatment for her back related complaints within one year of the September 2002 work incident, i.e. the applicable period referenced in § 31-294c(c). Therefore, the claimant’s failure to file a written notice of claim for her L1-L2 disc herniation does not bar her claim. Furthermore, the reports of the PHS physician who examined her indicated that she intended to pursue her Chapter 568 claim relative to her back complaints.
The appellant contends the trial commissioner’s reliance on Dr. Dickey’s expert opinion is an abuse of discretion as Dr. Dickey; was unaware that the claimant did not complain of back pain until after the incident in Florida and Dr. Dickey did not review any medical records following the September 2002 fall at work. The respondent argues that given the inaccurate patient history, Dr. Dickey’s opinion cannot stand as a competent basis for the conclusion drawn. We are not so persuaded.
The respondent’s assertion is not supported by the record. In the course of Dr. Dickey’s deposition testimony respondent’s counsel challenged the factual premise of Dr. Dickey’s opinion. At various points, counsel posed questions asking the doctor to assume the very facts that counsel claims on appeal were not considered by the doctor. Dr. Dickey did not waiver in his opinion that the September 27, 2002 injury was the cause of claimant’s present L1-L2 disc herniation and that his opinion was based on reasonable medical certainty.
Furthermore, contrary to the respondent’s contention, the record indicates that the claimant did suffer back pain following the September 2002 fall at work and testified to that fact. Although the claimant did not report her back pain to PHS until March 2003, we do not think her failure to do so can only support an inference that she did not suffer back pain following the September 2002 fall until after the February 2003 incident. The trial commissioner is charged with weighing the evidence and assigning credibility. It appears the trial commissioner credited the claimant’s testimony as to her back pain following the September 2002 work incident and her self treatment with ice, heat and ibuprofen. See Findings ¶¶30 and 31. While a different inference could have been drawn by the trial commissioner, we cannot substitute our inferences for those of the trial commissioner. As the Supreme Court most recently noted in Anderson v. R & K Spero Co., 107 Conn. App. 608, 616-17 (2008);
“Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it. . . . Our Supreme Court consistently has held that [n]o reviewing court can . . . set aside [an inference of the commissioner] because the opposite [inference] is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the [commissioner] is factually questionable. . . . This standard clearly applies to conflicting expert medical testimony. It [is] the province of the commissioner to accept the evidence which impress[es] him as being most credible and more weighty.” (Citations omitted; emphasis added; internal quotation marks omitted.) Krol v. A. V. Tuchy, Inc., 90 Conn. App. 346, 349 (2005).
We therefore affirm the July 19, 2007 Finding and Award of the Commissioner acting for the Third District.
Commissioners Charles F. Senich and Amado J. Vargas concur.