State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Rosa v. State of Connecticut Department of Children and Families

CASE NO. 5475 CRB-8-09-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 22, 2010

JOSEPH ROSA

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT DEPARTMENT OF CHILDREN AND FAMILIES

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

GAB ROBINS OF NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Jeffrey Nicholas, Esq., The Nichols Law Firm, LLC, 373 Prospect Street, Torrington, CT 06790.

The respondent was represented by Lisa G. Weiss, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 18, 2009 Finding and Award of the Commissioner acting for the Eighth District was heard January 29, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jack R. Goldberg and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent in this matter appeals from a Finding and Award granted to the claimant. Upon review we find this is a classic example of a Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988) case; where the decision hinged on the trial commissioner’s evaluation of factual evidence. Since we find no legal error, we affirm the Finding and Award and dismiss this appeal.

The Commissioner found the following facts at the conclusion of the Formal Hearing. She found the claimant had been employed by the respondent since 1988 as a Children’s Service Worker and that among his duties included the restraint of children. He testified that prior to August 9, 2006 he had not injured his right foot. The claimant traditionally took his summer vacation at the end of July and beginning of August and had returned to work from vacation on August 7, 2006. The claimant testified he had not been injured during his vacation.

The claimant worked his usual shifts on August 7 and August 8 without incident. On August 9 the claimant arrived at work. During his shift he found that two co-workers were in the process of restraining a boy who had become highly agitated. The restraint required a third person to assist by holding the boy’s legs and the claimant set forth to assist with the restraint. The restraint was in force for 25 minutes. During this period the claimant testified his right foot was bouncing off the floor and hitting the wall. The claimant testified he was eventually relieved by a co-worker, Keith Ricks, because it was the end of the claimant’s shift.

The claimant went to work on August 10 although he testified his foot was painful. The pain got worse as the day progressed but the claimant did not report the pain to any co-workers. The pain worsened after he left work on Thursday. Friday was the claimant’s day off, and the claimant did not work on Saturday or Sunday due to the pain. The claimant first sought medical treatment on Monday, August 14. That day he presented to Dr. Robert Matusz, DPM and informed the doctor he had suffered a fall at work and had been in pain for a week. Dr. Matusz diagnosed the claimant with a positive right foot fracture and took the claimant out of work for four weeks. The claimant confirmed his injury with his supervisor following his examination.

The claimant continued to treat with Dr. Matusz. He was in a soft cast until October of 2006 and was released to full duty with no restrictions on October 9, 2006. He returned to work that date. The claimant testified that in the 18 years he worked for the respondent prior to the incident he had not lost any time due to injuries. The trial commissioner did take note that the treating physician had checked off a box in a form sent to the respondent’s insurance carrier that as of November 16, 2006 he was unable to determine causation of the claimant’s injury within reasonable medical probability.

Based on these aforementioned facts the trial commissioner concluded the claimant’s testimony was credible and persuasive. She found the claimant injured his right foot at work on August 9, 2006 and that the injury was compensable. Because of the circumstances of the injury, the claimant was qualified for benefits under § 5-142a C.G.S. She found Dr. Matusz had provided reasonable and necessary medical care and that the claimant was disabled from work for a period from August 11, 2006 through October 9, 2006. She ordered the respondent to pay a lien of $1,331 to Anthem Blue Cross/Blue Shield for medical treatment from the injury.

The respondent filed a Motion to Correct following this decision. The trial commissioner granted only three of the 13 requested corrections, which did not materially change the outcome of this case. The respondent has pursued this appeal.

The sum and substance of the respondent’s appeal can be found on page six of their brief, where they assert “there is no medical evidence establishing causation.” This statement is factually incorrect. The claimant presented as evidence a letter from his treating physician, dated May 4, 2007 stating “it is more likely than not that Mr. Rosa’s right ankle injury is causally related to the injury of 8/9/06, as described by Mr. Rosa.” Claimant’s Exhibit E. The question before this board is whether the trial commissioner could have reasonably relied on this opinion to support an award. We believe she could do so.

On appeal, we generally extend deference to the decisions made by the trial commissioner. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004). The claimant does have the burden of proving his ailment was caused by a compensable injury Smith v. Waterbury, 5326 CRB-5-08-3 (February 4, 2009), but when a trial commissioner concludes a claimant has sustained this burden we are left to ascertain if that conclusion is consistent with the evidence presented on the record.

In the present matter, the claimant testified that he was injured while restraining an agitated child for a period of 25 minutes. He produced a co-worker who corroborated this account. The claimant testified his foot was bouncing off the floor and hitting the wall during this episode. It does not appear implausible that such an event could lead to a foot fracture and we believe the trial commissioner could have applied common knowledge in finding the claimant credible. Lee v. Standard Oil of Connecticut, Inc., 5284 CRB-7-07-10 (February 25, 2009). We cannot revisit findings of witness credibility Burton v. Mottolese, 267 Conn. 1, 40 (2003).1

The respondent argues that in any event the claimant’s narrative was unsupported by medical evidence, citing Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142 (1972). They also cite the form filled out by Dr. Matusz on November 16, 2006, wherein he checked off a box indicating he could not determine causation of the claimant’s injury with reasonable medical certainty. Respondent’s Exhibit 1. The respondent believes this evidence undermines the finding of causation.

We disagree. As noted, the claimant did produce a May 4, 2007 opinion from Dr. Matusz finding the injury was caused by the August 9, 2006 incident. While this may not be consistent with Respondent’s Exhibit 1 it is the trial commissioner’s responsibility to resolve discrepancies in medical testimony. Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007). Similar to Williams the trial commissioner chose to rely on those opinions of the treating physician she found most persuasive and credible. The respondent notes that Dr. Matusz was not deposed so as to clarify this issue. The matter is squarely aligned with the fact pattern in Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). In Berube we held that when a medical report is presented as evidence and the respondent does not depose the physician who authored the report “the respondents must accept the testimony ‘as is’, as well as the permissible inferences which the trial commissioner drew from it.” Id. Since the treating physician did opine to the causation of the claimant’s foot fracture in a manner consistent with Struckman v. Burns, 205 Conn. 542 (1987), we find no error, especially as the trial commissioner must consider “the entire substance of testimony.” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999), cited in Mehan v. Stamford, 5389 CRB-7-08-10 (October 14, 2009).2

The respondent finally challenges the trial commissioner finding the claimant totally disabled from August 11, 2006 to October 9, 2006. Finding, ¶ F. An October 9, 2006 letter from Dr. Matusz contained in Claimant’s Exhibit E released the claimant to work with no restrictions on October 9, 2006. We are puzzled as to how the trial commissioner’s decision on this issue constitutes error when it clearly relied on the treating physician’s opinion.

In Williams, supra, we quoted Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001) for this black letter law regarding our role on appeal. We find it dispositive of the issues herein.

When 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)

We find the trial commissioner could have found Dr. Matusz’s opinions on causation constituted competent evidence. The trial commissioner also could find the claimant’s testimony as to the mechanism of the injury credible. Therefore, we affirm the Finding and Award and dismiss this appeal.3

Commissioners Jack R. Goldberg and Christine L. Engel concur in this opinion.

1 The respondent argues at length that the length of time between the August 9, 2006 restrain incident and the claimant’s initial medical examination of August 14, 2006 makes it implausible the incident caused the fracture, arguing “can one walk on such a fracture for four or five days?” Respondent’s Brief, p. 6. The respondent had their opportunity to make this factual argument before the trial commissioner and failed. This issue falls squarely within the precedent in Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988) and cannot be revisited by this panel unless it is so manifestly unreasonable as to “vitiate logic.” In re Shaquanna M., 61 Conn. App. 592, 603 (2001). BACK TO TEXT

2 See also the October 1, 2006 letter from Dr. Matusz, attributing the claimant’s foot fracture to the restrain incident. BACK TO TEXT

3 We uphold the trial commissioner’s denial of those corrections sought in the respondent’s Motion to Correct which she denied. This motion sought to interpose the respondent’s conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (Apri 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT

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