State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Jodlowski v. Stanley Works

CASE NO. 5627 CRB-6-11-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 13, 2012

JAN JODLOWSKI

CLAIMANT-APPELLANT

v.

STANLEY WORKS

EMPLOYER

and

SPECIALTY RISK SERVICES

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant appeared on his own behalf at oral argument. At the trial level the claimant was represented by Angelo Cicchiello, Esq., Law Offices of Angelo Cicchiello, 364 Franklin Avenue, Hartford, CT 06114.

The respondents were represented by Erik S. Bartlett, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review1 from the January 7, 2011 Finding and Award of the Commissioner acting for the Sixth District was heard August 26, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This matter is the subject of appeals brought by both the claimant and the respondents from a Finding and Award granted to the claimant following an extensive formal hearing. The claimant argues that the trial commissioner should have found a number of his injuries and ailments to be compensable that the commissioner found not to be compensable. The respondents argue that the record did not establish that the claimant’s groin injury and hernia was compensable. We are satisfied that the trial commissioner appropriately weighed the evidence and applied the law. We affirm the Finding and Award and dismiss both appeals.

The trial commissioner issued a thirty-six page Finding and Award which included 182 findings of fact and sixty-one conclusions. This decision was reached after a formal hearing which commenced October 14, 2009 and was continued to sessions on December 9, 2009, January 14, 2010, February 11, 2010 and April 15, 2010. The record was closed at a formal hearing on August 30, 2010. The trial commissioner considered the following issues at the formal hearing.

1. Whether the claimant sustained injuries to his right shoulder and left knee in a work accident on November 8, 2004;
2. Whether the claimant’s hernia and subsequent hernia repair are causally related to the work accident on November 8, 2004;
3. Whether the claimant has sustained a compensable psychiatric injury or illness as a result of physical injuries sustained in a work accident on November 8, 2004;
4. Whether, notwithstanding the approval of certain voluntary agreements for permanent partial disability, the claimant is entitled to compensation for total incapacity under C.G.S. Section 31-307; and
5. Whether pain management treatment the claimant is currently receiving is reasonable and necessary medical care under the terms of C.G.S. Section 31-294d.

In his conclusions the commissioner wrote that the claimant was a long time employee of Stanley Works, had been denied a promotion in 2003, and had been subsequently disabled from work due to depression. In 2004 the claimant began treating with a psychiatrist, Frederick Reindel, M.D. In 2004 the claimant also returned to his job at Stanley. On November 8, 2004 the claimant was injured when a rolling tool box in which he kept his tools began to tip. He grabbed a heavy grinding wheel to keep it from being damaged and tried to prevent the toolbox from falling over, but was unable to do so. As the tool box fell it scraped along his torso and down his legs before coming to rest on the floor. The claimant then strained to lift the tool box up so he could put the tools back in. Conclusion, ¶ D.

On November 9, 2004 the claimant was sent to Doctors Treatment Center, a clinic that is the primary provider for Stanley Works employees who are injured. His treating physician at that facility was Dr. Matthew Thomas. He treated the claimant conservatively for neck and back strains, which treatment included medication, physical therapy and restrictions on the physical demands at work. The disability slips provided to Stanley Works by Dr. Thomas in November 2004 listed the injured body parts as “back/lower extremities.” The respondents accepted the occurrence of the accident as compensable and paid for the claimant’s medical treatment at Doctors Treatment Center. The claimant returned to work a few days after the accident and continued to work significant overtime, although his physician recommended he work no more than eight hours a day, five days a week. During this time he continued to treat with Dr. Thomas and at Healthsouth, where he received physical therapy. The claimant’s treatment with his psychiatrist was essentially unchanged from what it had been prior to the work accident.

On November 30, 2004 the claimant filed a Form 30C which alleged injuries to the following body parts; “hands, shoulders, neck, back, lower back, abdomen, Rt hip, legs & knee.” On December 15, 2004 the respondents filed with the commission office a Form 43 accepting the occurrence of the work accident, but conceding only an injury to the low back. The respondents denied responsibility for the other body parts listed in the claimant’s Form 30C.

On December 20, 2004 Dr. Thomas referred the claimant to a surgeon, Dr. Patrick Rocco, for a possible hernia. On that day he also referred the claimant for an orthopedic consultation with Dr. Stephen Pillsbury. The respondent authorized these visits the next day. On December 27, 2004 the claimant was examined by Dr. Rocco and found to have a groin strain and/or small inguinal hernia. On September 6, 2005 Dr. Rocco proposed surgical repair of a right inguinal hernia. The respondents contested this on the grounds that earlier tests had been negative for a hernia. The claimant underwent a surgical repair of his hernia on October 5, 2005 and had this paid for by his group health insurance.

In early 2005 the claimant encountered difficulty in seeing Dr. Pillsbury for treatment, but this was resolved. The claimant told his psychiatrist, Frederick Reindel, M.D., that due to this situation he was “tearful and overwhelmed” and he felt “mistreated” and that he did not feel he was able to work. Dr. Reindel gave him a disability slip for short-term disability saying that he was unable to work until further notice, starting January 7, 2005. Conclusion, ¶ P. The claimant commenced treating with Dr. Pillsbury on February 3, 2005 for complaints of pain in his left shoulder and right knee. The respondents have accepted the compensability of the left shoulder and right knee problems and have provided medical treatment as prescribed by Dr. Pillsbury. After an April 22, 2005 examination where the claimant presented right shoulder and left knee complaints, Dr. Pillsbury questioned the causal connection between the right shoulder and left knee and the claimant’s accident at work. The respondents have continued to contest any claim of injury to the right shoulder and left knee. On June 28, 2005 Dr. Pillsbury performed surgery on the claimant’s left shoulder, which the respondents accepted as compensable. The claimant then underwent physical therapy, which was also accepted and paid.

The respondents have also approved the claimant treating with Dr. W. Jay Krompinger for his back and neck injuries. They have accepted the compensability of the claimant’s back and neck injury; as well as the treatment prescribed by Dr. Krompinger. Both Dr. Krompinger and Dr. Pillsbury opined that the claimant reached maximum medical improvement and had a work capacity as based on the claimant’s physical injuries. Because of the claimant’s continued complaints of pain, both physicians referred the claimant to Dr. Jonathan Kost, a pain management specialist. The claimant began treating with Dr. Kost in October 2006 and has continued to treat with him since that time. Dr. Kost has treated the claimant with medication. Dr. Kost opined that the claimant was temporarily totally disabled until January of 2008. Dr. Kost referred the claimant for a functional capacity evaluation and then cleared the claimant for sedentary work, issuing specific restrictions, mostly relative to the left arm.

The claimant reached maximum medical improvement for his physical injuries on November 22, 2007 and entered into voluntary agreements for permanent partial disability of the left non-master arm, the right leg, the neck and back. The claimant has an 11% permanent partial disability of the left, non-master arm. The claimant has an 8.3% permanent partial disability of the right leg (knee). The claimant has a 7% permanent partial disability of the neck (cervical spine). The claimant has an 8% permanent partial disability of the back (lumbar spine). The claimant’s treating physician, Dr. Reindel, maintains that the claimant remains totally incapacitated from gainful employment. The claimant maintains that he is entitled to § 31-307 C.G.S. total disability benefits.

Based on this factual record the trial commissioner considered the specific claims for benefits presented by the claimant to the Commission. The trial commissioner considered the claim for benefits from an alleged injury to the claimant’s right shoulder and left knee. The commissioner noted that the claimant did not raise this shoulder ailment when first treated by an orthopedic specialist on February 5, 2005 and when examined by Dr. Pillsbury in April of 2005 the claimant described the problem as having recently developed. Conclusion, ¶ DD. The commissioner found no credible evidence that supported the claimant’s claim for benefits due to a right shoulder injury which was a result of the November 8, 2004 work accident. Conclusion, ¶ EE. The trial commissioner also found no credible evidence was presented supporting an injury to the claimant’s left knee as a result of that incident. Conclusion, ¶ HH.

The trial commissioner also decided that the claimant did not sustain a compensable psychiatric injury as a result of the November 8, 2004 work accident. The commissioner found there was no significant change in the claimant’s psychiatric medication after the 2004 work accident and “the notion that the cause of the claimant’s preexisting psychiatric condition suddenly changed on November 8, 2004 is illogical and clearly not supported by the evidence in this case.” Conclusion, ¶ NN. The trial commissioner found Dr. Reindel’s opinions as to the work accident being the cause of the claimant’s incapacity to be unpersuasive.

The trial commissioner concluded the evidence showed the claimant had continued to work overtime following the accident and that the proximate cause to the claimant’s intensified depression appeared to be his reaction to the filing of the Form 43 by the respondents. Conclusions; ¶¶ OO-VV. The commissioner found the respondents had a reasonable basis to file such a disclaimer. The trial commissioner further found Dr. Mark Rubenstein, the respondent’s examiner, to be persuasive in his opinion that most of the claimant’s pain was the result of his depression – rather than physical injuries which might be pinpointed and treated. Conclusion, ¶ WW. The commissioner noted as well “the claimant continues to complain of pain in virtually every part of his body despite extensive therapy with powerful analgesics and other medications.” Id. As a result, the trial commissioner concluded “the claimant’s psychiatric condition, and the claimed incapacity resulting from that condition, is not caused by or aggravated by the personal injuries sustained by the claimant on November 8, 2004 or by any pain or limitation causally connected to those injuries.” Conclusion, ¶ ZZ.

The trial commissioner further considered the claimant’s bid for additional benefits under § 31-307 C.G.S. subsequent to the issuance of voluntary agreements establishing a permanent partial disability rating. He found none of the claimant’s treating physicians asserted that the claimant was currently totally disabled. The commissioner found Dr. Kost’s assessment that claimant has a sedentary work capacity persuasive. Therefore, the commissioner found insufficient evidence to conclude that, notwithstanding the claimant’s limited work capacity, the claimant’s earning capacity has been completely destroyed.

The trial commissioner did rule in the claimant’s favor on two contested issues. On the issue as to whether the claimant’s pain management treatment constituted reasonable and necessary medical care under § 31-294d C.G.S. the trial commissioner found the opinions of Dr. Kost reliable. The commissioner agreed with Dr. Kost that the most probable explanation for the claimant’s ongoing left arm complaints was that the claimant suffered a strain injury to his brachial plexus which had resulted in certain neurologic complaints in the arm and chronic pain. Since the medications provided by Dr. Kost brought the claimant to the point where he has a work capacity and are necessary to keep the claimant at a level of functioning where he is capable of some form of employment, the treatment was curative and not palliative. Therefore, the treatment was reasonable and necessary under § 31-294d C.G.S.

The trial commissioner further found for the claimant on the issue of whether the claimant’s hernia injury was compensable. The trial commissioner found the claimant reported pain in his abdomen at the time of his first treatment, on November 9, 2004, and at that time Dr. Thomas observed objective signs of trauma to the abdomen. The commissioner also found the mechanism of injury as described by the claimant was consistent with onset of a hernia. The commissioner found that as of December 27, 2004 Dr. Rocco’s examination found a small, right, inguinal hernia and muscle strain. As the claimant’s complaints had not abated significantly between December 2004 and September 6, 2005, when Dr. Rocco again noted the presence of an inguinal hernia, the trial commissioner found the subsequent hernia surgery was due to a compensable injury. This treatment was reasonable and necessary under § 31-294d C.G.S.

Both the claimant and the respondent filed Motions to Correct. The trial commissioner granted some of the corrections sought by the litigants, but the commissioner’s rulings did not materially change the relief approved in the Finding and Award. The claimant is pursuing this appeal as a self-represented party after being represented by counsel at the formal hearing. He has filed a Motion to Submit Additional Evidence which was pending as of the hearing before this tribunal. Both the respondent and the claimant have decided to appeal from the trial commissioner’s decision.

Prior to considering the merits of the appeal we must consider the pending Motion for Additional Evidence. The claimant seeks to admit documentation concerning his treatment with a social worker and a large number of phone records. The respondents have objected to the admission of these records, asserting that pursuant to Diaz v. Jaime Pineda, a/k/a Jamie Pineda, d/b/a J. P. Landscaping Company, 117 Conn. App. 619 (2009) the claimant lacks sufficient justification for the admission of this material. We concur in this assessment and sustain the respondent’s objection.

In Baker v. Hug Excavating, Inc., 5443 CRB-7-09-3 (March 5, 2010) we considered a similar request and denied the claimant’s motion. As the Appellate Court pointed out in Mankus v. Mankus, 107 Conn. App. 585 (2008), when a litigant seeks pursuant to Admin. Reg. § 31-301-9 to present previously unconsidered evidence directly to this panel the moving party must establish good cause.

Thus, in order to request the board to review additional evidence, the movant must include in the motion 1) the nature of the evidence, (2) the basis of the claim that the evidence is material and (3) the reason why it was not presented to the commissioner.

Id., at 596.

We are not persuaded that this documentation could not have been added to the record prior to the conclusion of the formal hearing. We believe admission of this evidence at this juncture would be “... an effort to try the case in an inappropriate piecemeal fashion. Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001).” Grant v. Siemens Westinghouse Power Co., 5292 CRB-4-07-11 (October 28, 2008). We therefore deny the Motion to Submit Additional Evidence.

We now turn to the merits of the two appeals. The claimant argues that the claim for his right shoulder and left knee were properly noticed injuries. He argues that the trial commissioner erred in relying on the opinions of Dr. Rubenstein over that of Dr. Reindel on the issue of psychiatric disability. He further argues that his former attorney failed to depose his social worker, Margaret Moore, LCSW, prior to the trial commissioner rendering a decision. We find that none of these arguments persuade us that the trial commissioner erred as a matter of law.

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 Compensation Review Board cannot retry the facts of the case and may only overturn the findings of the trial commissioner if they are without evidentiary support, contrary to the law, or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, Inc., 248 Conn. 379 (1999) and Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The claimant argues that he properly noticed his claim for injuries to his right shoulder and left knee. However, the trial commissioner did not reject this element of the claim due to inadequate notice but rather because he was not persuaded by the claimant’s evidence. It was the claimant’s burden to establish his injury was compensable, Smith v. Waterbury, 5326 CRB-5-08-3 (February 4, 2009), and he failed to sustain his burden. In his conclusions, the trial commissioner outlined his evaluation of the medical evidence on the record in detail. He could reasonably rely upon Findings, ¶¶ 77-81, wherein Dr. Pillsbury outlined his reasons for not finding a causal relationship between the 2004 accident and the claimant’s stated ailments for the right shoulder and left knee. Therefore, we find the trial commissioner made a reasonable decision based on the evidence on the record.

The claimant asserts it was erroneous for the trial commissioner not to rely on his treating physician on the issue of psychiatric injuries. We have long held it is the trial commissioner’s prerogative to decide which expert witness on an issue he or she finds more persuasive. Dellacamera v. Waterbury, 4966 CRB 5-05-6 (June 29, 2006), n. 1. The claimant’s Motion to Correct focused primarily on seeking to cause the trial commissioner to rely on the opinions of Ms. Moore, the claimant’s social worker. The trial commissioner denied those corrections. We must conclude therefore that after being given an opportunity to reconsider his Findings that the commissioner still believed Dr. Rubenstein offered the more probative and persuasive testimony. Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011)(Per Curiam). The trial commissioner offered a thorough and cogent explanation as to why he found Dr. Rubenstein’s opinions more persuasive that that of Dr. Reindel. See Findings, ¶¶170-176 and Conclusions, ¶¶ MM-ZZ. We must defer to the trial commissioner’s evaluation of medical evidence, Williams v. Bantam Supply Co., 5132 CRB-5-06-9 (August 30, 2007). We find no error on the issue of psychiatric disability.

This determination also resolves the claimant’s argument he is entitled to continued temporary total disability benefits. The claimant had the burden of proving he was entitled to such benefits. Hernandezv. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). Dr. Rubenstein clearly testified he did not believe the claimant’s work accident created his psychiatric disability. The claimant’s present treating physician, Dr. Kost, has also opined the claimant has a work capacity. Conclusion, ¶ CCC. The trial commissioner’s reliance on this testimony is dispositive of the issue.

Finally, the claimant argued it was error on the part of his prior counsel not to have deposed Ms. Moore prior to the conclusion of the formal hearing. The claimant does not point to any decision made by the trial commissioner which would have prevented this from having occurred during the course of the hearing. Therefore, we do not find this averment raises an issue of error on the trial commissioner’s part.

We find no error on the part of the trial commissioner as related to the issues raised by the claimant in his appeal. We therefore turn our attention to the respondent’s appeal. The respondents argue the trial commissioner’s decision on the issue of hernia surgery was insufficiently supported by probative medical evidence. They cite Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142 (1972) as grounds for overturning the commissioner’s award on this issue. While we acknowledge this is a well reasoned argument, after consideration of the voluminous record relied upon by the trial commissioner we find the argument ultimately unpersuasive.

The respondents argue that this is a case unlike Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670 (2003) and the relationship between the work activity and the injury was outside the realm of “common knowledge and human experience.” Therefore, in the respondents view, expert medical evidence was necessary to prove causation. The respondents correctly point out the record is bereft of any medical opinion on this point rendered in accord with Struckman v. Burns, 205 Conn. 542 (1987). They also point to certain examinations by Dr. Rocco and a CT scan performed in early 2005 which failed to detect the presence of a hernia.

Our review on appeal must consider that the respondents raised the same arguments before the trial commissioner in their Motion to Correct. The trial commissioner considered these arguments and rejected them. In light of the deference we must show on appeal to a trial commissioner’s ruling on a Motion to Correct, Brockenberry, supra, we must ascertain if the trial commissioner’s decision was contrary to the law or the evidence. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). We therefore look to the rationale for the trial commissioner’s decision, as stated in his denial of Proposed Correction #16 in his Ruling on Respondent’s Motion to Correct, dated March 7, 2011. (“Ruling”)

The trial commissioner in this matter clearly made a deliberate decision in ruling on this motion and provided a detailed rationale for reaching this decision. He decided “I do not believe Murchison controls this situation.” He concluded that in Murchison the nature of the claim, which was a repetitive trauma claim, created a question for the trier of fact which required an expert medical opinion. In the present case, the commissioner determined that the facts were sufficiently undisputed that such expert opinion was not required. He explained his reasoning as follows.

In this case, the November 2004 incident was specific accident, the occurrence of which is undisputed, and which can be located precisely in time and space. Moreover, the accident involved not only direct trauma to the claimant’s abdomen and leg (i.e., the falling of the 400-pound tool box against his lower abdomen and right thigh and his struggle to hold it up), but that initial trauma was immediately followed by significant physical exertion as he struggled to lift the tool box back up, first with its heavy load of tools and then with its contents spilled out, which content he was then required to pick up and restock. That such a trauma, and particularly such heavy lifting, can cause a strain to the abdominal muscles and even hernia is well within the “common knowledge and ordinary human experience.” Sprague v. Lindon TreeService, Inc., 80 Conn. App. 670, 676 (2003).

Ruling,supra.

The commissioner further cited Garofalo v. Jarvis Products Corp., 4249 CRB-8-00-6 (September 12, 2001) for the proposition that “[a]n ‘average educated layman’ can well appreciate that a hernia and/or groin strain ‘would foreseeably occur’ while one was attempting the type of physical exertion this claimant had to undertake at the time of the accident.” Id. Based on his review of the records the commissioner further concluded “[i]f Dr. Rocco did not expressly state an opinion on causation it was because he had no reason to articulate that which was clearly not in dispute. He was not asked to give an opinion on causation and had no reason to think he needed to do so, since the workers’ compensation carrier has already approved his treatment.” Id. The commissioner further determined “there is no suggestion that Mr. Jodlowski had a hernia (or any form of abdomen or groin strain) prior to the accident at work in November 2004” and the medical records document an immediate trauma and abdominal injuries. The Commissioner determined that as “[t]here is nothing in the record to suggest any intervening trauma that could be a more likely cause of the hernia/groin strain” that the November 2004 was the most likely cause of the claimant’s hernia. Id.

We have reviewed the medical records and testimony in this file and concur with the trial commissioner’s assessment that there is no other possible cause for the claimant’s hernia that was presented to the tribunal. This is not a case such as Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006) where respondents presented evidence of a prior motor vehicle accident or Burns v. Town of Southbury, 5608 CRB 5-10-11 (November 2, 2011) where evidence of a ongoing degenerative ailment was presented to the trial commissioner. The only evidence presented to the trial commissioner supported the claimant’s position the hernia injury was compensable.

The trial commissioner concluded that in this case there is no opinion of causation by either physician who treated the claimant for this injury since neither the claimant nor the respondents sought such an opinion from either physician. The claimant apparently believed this issue was essentially undisputed and the respondents conversely could choose to leave the claimant to his proof. The matter is aligned with the fact pattern in Berube, supra. “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. Rosa v. State/DCF, 5475 CRB-8-09-7 (June 22, 2010). The medical reports herein indicate the claimant presented with a compensable traumatic injury, and at a later point was required to undergo hernia surgery. Therefore, the sole question is whether the trial commissioner drew a permissible inference as to causation.

Our belief that the commissioner could reasonably rule in the claimant’s favor is rooted in the holding in Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010). We believe that Marandino clarified the precedent in Murchison, supra. “Moreover, as we have explained previously herein, it is proper to consider medical evidence along with all other evidence to determine whether an injury is related to the employment,” Marandino, supra, at 595. (Emphasis in original). In the present case, all the other evidence presented by the claimant was consistent with his position he sustained a traumatic groin injury at work. The trial commissioner accepted his testimony that he had sustained injuries lifting a heavy tool box and that he had continued to experience pain continuously to the date of the surgery.2 3 In addition, Marandino limited the impact of Murchison to cases where “it is unclear whether an employee’s [subsequent injury] is causally related to a compensable injury.” Marandino, supra, at 591-592. The trial commissioner determined on the facts there was sufficient clarity to infer causation.4

In considering this matter, we find the facts herein are simply too similar to Sprague, supra, and its progeny of cases to justify reversing the trial commissioner’s decision. In particular, we find no material difference with Lee v. Standard Oil of Connecticut, Inc., 5284 CRB-7-07-10 (February 25, 2009). In Lee, the claimant was a fuel oil delivery driver who sustained a hernia as the result of dragging a heavy hose over uneven terrain. The trial commissioner decided that although the claimant failed to provide a medical opinion on the issue of causation, “the trial commissioner is not required to ignore common sense in arriving at a conclusion on causation.” The respondents argued that the trial commissioner could not rely on common sense in this matter. We upheld the trial commissioner in Lee as “the testimony of the claimant provided support for each of the trier’s findings as to the physical discomfort and strains endured by the claimant as a result of his work.” Id. We also determined “[w]hile the issue of the proximate cause of the claimant’s hernia was not a matter before the trial commissioner or this board it is within the ambit of common knowledge that a hernia is the result of muscle strain.” Id.

The hernia the claimant sustained in this case was found to be the result of lifting an extremely heavy tool box after an accident. If the mechanism of lifting and carrying a hose may provide a “common sense” explanation for the presence of a hernia, certainly the muscle strain associated with the claimant’s narrative of the November 8, 2004 accident offers equally sufficient justification to support a finding that the claimant’s hernia was a compensable injury.

We find the trial commissioner’s Finding and Award was supported by probative evidence and consistent with the law. We affirm the decision and dismiss the appeals of the claimant and the respondents.

Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.

1 We note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 We are mindful of the precedent in DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 294 Conn. 132 (2009) where the Supreme Court directed this Commission not to rely on medical opinions which are grounded in speculation or conjecture. The Respondents argue this case is dispositive of this issue. We disagree. In the present case, the trial commissioner concluded that rather than speculating on the cause of the claimant’s injuries, his treaters simply did not consider any alternative explanation for the injury besides the claimant’s own narrative. BACK TO TEXT

3 The trial commissioner could have reasonably relied on the claimant’s testimony on the issue of groin pain. See December 9, 2009 Transcript, p. 22; pp. 26-27; p. 58; February 11, 2010 Transcript, pp. 55-56. BACK TO TEXT

4 It is difficult to ascertain how a matter can be “unclear” when only one possible cause for an injury is presented to the trial commissioner for consideration. While the trial commissioner might well have found the totality of the evidence to be unpersuasive on the issue of causation, in the present case he did not have to choose between alternative theories of causation. BACK TO TEXT

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