CASE NO. 5484 CRB-7-09-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 23, 2010
JAMES W. CONNORS
CITY OF STAMFORD
PMA MANAGEMENT OF NEW ENGLAND
The claimant was represented by Lawrence Sgrignari, Esq., Gesmonde, Pietrosimone & Sgrignari, LLC, 3127 Whitney Avenue, Hamden, CT 06518-2344.
The respondents were represented by James D. Moran, Jr., Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.
This Petition for Review from the July 17, 2009 Finding and Dismissal of the Commissioner acting for the Seventh District was heard January 29, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the July 17, 2009 Finding and Dismissal of the Commissioner acting for the Seventh District.1 The ultimate issue presented for review is whether the trial commissioner erred in concluding that the claimant’s back injury was not compensable.
The pertinent facts in this matter are as follows. The claimant was employed by the respondent as a plumber. In addition to his employment by the respondent the claimant also performed side jobs. The claimant alleged that in the afternoon on July 13, 2007 he injured his back while attempting to lift a 30-40 pound metal valve. On that day the claimant’s morning work assignment included faucet repairs. In the afternoon, the claimant picked up materials for use in a repair job scheduled to be performed on Saturday at Springdale School.
The claimant alleged that when he was loading the van he felt a sharp pain in his back. Additionally, when he arrived at Springdale School he prevailed upon the custodian to assist him with unloading the van. After completing his work day the claimant sought treatment with Dr. Paul Weinstein, a chiropractor. The claimant informed Dr. Weinstein that he hurt his back earlier that day when he lifted the 30-40 lb valve.
On the morning of July 13th, however, when the claimant arrived at work some co-workers noted the claimant appeared to be in significant pain and was unable to walk upright. The claimant complained to his co-workers that he stepped in a divot and slipped while working a side job the day before.
In the proceedings before the trial commissioner the claimant testified that he had stepped into the divot the day before the lifting incident but the divot incident was not the cause of his back pain. In support of the claimant’s contention, evidence was put forth indicating that the claimant left work at 2:48 p.m. on July 12, 2007 and did the side job. There was testimony that the claimant returned home around 4:00 p.m., played with his children, ate dinner and then went bowling. The testimony of the claimant’s wife, best friend and another bowler indicated that the claimant did not appear to be in pain prior to or after bowling three games. Further, claimant’s wife testified he did not appear to be in pain before leaving for work on the morning of July13.
Contrary to the claimant’s assertions the custodian who assisted the claimant with unloading the van at Springdale School testified that the claimant told him that he hurt himself the evening before when he stepped in the divot. See Finding, ¶ 19. There was also evidence presented reflecting that the claimant advised a supervisor he was unable to report to work on Saturday, July 14, 2007 as he injured his back while lifting the valve the day before. The following week the claimant advised a timekeeper for the respondent that he was not reporting for work. When the timekeeper inquired whether the absence was due to a claim for Workers’ Compensation or personal illness, the claimant informed her that it was personal illness.
Following his injury, the claimant was evaluated and treated by a number of doctors. On August 31, 2007 the claimant underwent an MRI which indicated a left sided disc herniation at L4-5 level. The related report of Dr. Stephen R. Getlik, D.C., indicated that the claimant’s injury was consistent with a heavy lifting incident. See Finding, ¶ 34. On September 25, 2007 the claimant was examined by Dr. Scott Simon, M.D., a neurosurgeon. Dr. Simon was informed of both the divot incident and the heavy lifting at work incident and opined that the claimant’s injury was most likely the result of the claimant’s heavy lifting on July 13, 2007.
The resolution of the issue presented, whether the trial commissioner erred in concluding that the claimant failed to sustain his burden of proof that his lower back injury arose out of and in the course of his employment, is a factual question to be decided by the trial commissioner. See Lettieri v. Tilcon Connecticut, Inc., 5478 CRB-3-09-6 (June 17, 2010), Hernandez v. Pizzaria 101 and Family, 5254 CRB-2-07-7 (December 8, 2008). It is dependent upon the weight and credibility accorded to the evidence by the trial commissioner. Further, such determinations will not be disturbed unless without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). We are not so persuaded.
In his appeal the claimant argues that the trial commissioner’s conclusion in Finding, ¶ J demonstrates error as it misstates the applicable law, and relies on facts not in evidence. In paragraph J of the July 17, 2009 Finding and Dismissal the trial commissioner stated:
That based on the totality of evidence submitted, I find that the Claimant has failed to sustain his burden of proof that he suffered a back injury on July 13, 2007, which arose out of and in the course of his employment with the Respondent Employer. I find that the Claimant initially injured his back from slipping in a divot while working a “side job”on July 12, 2007 and or bowling. The Claimant arrived at work on the morning of July 13, 2007 having visible back pain. The Claimant may have “aggravated” his back injury by lifting the valve out of his van on July 13, 2007, however, the Claimant has not filed such claim. Therefore, I find the “lifting of the valve” not to be the sole cause of the Claimant’s back injury and not compensable.
It is clear that the trial commissioner found the claimant’s various assertions as to the mechanism of his injury to be inconsistent and therefore not persuasive. The testimony of the claimant is inconsistent, and is contradicted by the testimony of others. The medical opinions offered in support of the claimant’s theory of causation all flow from the history of events provided by the claimant. The claimant references the medical reports of Dr. Getlik and Dr. Simon opining that the claimant’s injury was the result of the valve lifting incident on July 13, 2007. The trial commissioner was not persuaded by these opinions. As we stated in Rakowski v. Marlin Firearms, 5340 CRB-3-08-4 (April 22, 2009)
Given that the medical opinions expressed in the causation reports were largely “derivative of the claimant’s narrative,” Do v. Danaher Tools, 5029 CRB-6-05-12 (November 28, 2006), the decision to reject such medical opinions was solely the prerogative of the trial commissioner and not subject to challenge by this board. “The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted.) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).
The claimant may have provided Drs. Getlik and Simon with some details of the divot incident occurring July 12, 2007 and the valve lifting incident of July 13, 2007. However, the trial commissioner found that the claimant did not provide the physicians with a history of his bowling activities on July 12, 2007. See Darby v. Hart Plumbing Company, 5325 CRB-2-08-2 (February 4, 2009).
We acknowledge that the trial commissioner’s comments following her conclusion that the “claimant failed to sustain his burden of proof that he suffered a back injury on July 13, 2007, which arose out of and in the course of his employment with the Respondent Employer” appear inconsistent with current theories as to proximate causation and the discretion accorded a trier in determining certain facts. Nevertheless, the resolution of this matter does not turn on any of the trier’s statements following her conclusion that the claimant failed to sustain his burden of proof. If we were to strike all of the portions of the finding to which the claimant objects on appeal, the trial commissioner’s ultimate finding would still stand.
Therefore, the trial commissioner was within her right to dismiss the claim based on the weight and credibility she accorded the claimant’s testimony. Having determined that the claimant’s testimony was in conflict with his own statements and those of other witnesses, the trier did not need to reach a comment or reach a determination as to the appropriate proximate cause standard or theory to be applied. Therefore any statements of the trier’s findings and conclusion which appear to conflict with the present understanding of our law constitute harmless error.
In reaching this conclusion we are guided by our Supreme Court’s recent opinion in Wiseman v. Armstrong, 295 Conn. 94, 106 (2010). In Wiseman the majority reviewed the history of the harmless error rule. The majority noted that in civil cases the harmless error rule allows for a new trial when the “‘the ruling was both wrong and harmful.’ (Emphasis in original.) Prentice v. Dalco Electric, Inc., 280 Conn. 336, 358, 907 A.2d 1204 (2006), cert. denied, 549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007).” Wiseman, supra, at 106.
The Wiseman court also stated:
Allowing a party to receive a new trial as a result of an error that had no effect on the fairness of the original trial would be inequitable to the opposing party. See, e.g., Kotteakos v. United States, supra, 328 U.S. 760 (explaining harmless error review as encouraging courts “not [to] be technical, where technicality does not really hurt the party whose rights in the trial and in its outcome the technicality affects” [internal quotation marks omitted]); Duffy v. Vogel, 49 App. Div. 3d 22, 26, 849 N.Y.S.2d 52 (2007) (“To deprive defendants of the benefit of [their] verdict — one that was fairly earned and entered — for an error not of their making or one for which they bear any responsibility, would, on these facts, be grossly unfair. . . ..”), rev’d, 12 N.Y.3d 169, 905 N.E.2d 1175, 878 N.Y.S.2d 246 (2009). . . .
Wiseman, supra, at 109.
We find the Wiseman court’s quote of Duffy, supra, particularly relevant. We therefore affirm the July 17, 2009 Finding and Dismissal of the Commissioner acting for the Seventh District.
Commissioners Nancy E. Salerno and Jack R. Goldberg concur.
1 We note initially the respondents filed an appeal on August 7, 2009 which was later withdrawn. We also note that an extension of time was granted in the course of these proceedings. BACK TO TEXT