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CASE NO. 1771 CRB-4-93-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 27, 1995
The claimant was represented by Linda Guliuzza, Esq., Greenberg, Hurwitz, Cooper & Silverman, 345 Whitney Avenue, New Haven, CT 06511.
The respondent was represented by Francis J. Ficarra, Esq., 800 Clinton Avenue, Bridgeport, CT 06604.
The Petition for Review from the June 25, 1993 Finding and Dismissal of the Commissioner acting for the Fourth District was heard June 24, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.
JESSE M. FRANKL. CHAIRMAN. The claimant has petitioned for review from the June 25, 1993 Finding and Dismissal of the Commissioner for the Fourth District. She contends on appeal that the commissioner improperly concluded that the back injury sustained by claimant on June 16, 1992 did not arise out of or in the course of her employment. We affirm the trial commissioner’s decision.
The claimant alleged that she injured her back on June 16, 1992 while she and her supervisor were pulling a patient up in her bed. She reported the injury to her supervisor, who sent her to the Employee Health Unit. She was diagnosed as having a mid to lower back strain on the left side and was given anti-inflammatory medication and sent back to work to finish her shift.
On July 23, 1992 claimant experienced pain in her back and right leg and was having difficulty walking. She sought treatment by Dr. Edward M. Staub, an orthopedic surgeon who recommended strict bedrest. An MRI was taken on July 27, 1992. On July 28, 1992 claimant treated again with Dr. Staub who again recommended strict bedrest and no work. The MRI showed significant disc herniation at L3-4 and L4-5. Claimant requested referral to Dr. Abraham Mintz, a neurosurgeon who began treating claimant on July 30, 1992. At that time he discussed the MRI, recommended physical therapy and prescribed medication. His office notes do not indicate an opinion as to work capacity at that time.
In his findings, the commissioner noted that claimant denied having suffered a back injury or having received treatment for a back injury prior to June 16, 1992. He also noted a Bridgeport Hospital discharge summary which stated that claimant was hospitalized from September 21, 1989 to September 30, 1989 with pelvic and abdominal pain. Diagnostic testing revealed some moderate midline central disc protrusions of L-3 and L-4, both of which might have been central disc herniations. Also noted was the January 3, 1991 office note of Dr. Staub which stated that claimant was having back pain and left-sided sciatica radiation with numbness and tingling in her left foot.
The commissioner ’s findings also note that claimant was involved in a motor vehicle accident on February 8, 1988. She was treated for neck and back problems and given a 10% permanent disability of her back. Claimant failed to report the neck and back injuries from the motor vehicle accident on the health record form she completed prior to her employment with respondent. It was also noted that videotapes of claimant taken on July 29, 1992 and August 8, 1992 showed her performing various activities which contradicted her claim of total disability for that period.
The commissioner ’s findings make note that the evidence presented was conflicting and the ultimate conclusion rests upon the weight and credibility afforded to the differing evidence. The commissioner has discretion to weigh the credibility of such testimony in choosing whether or not to rely upon it. Cholewinski v. Brake Systems, Inc., 6 Conn. Workers’ Comp. Rev. Op. 105, 601 CRD-4-87 (January 27, 1989). The commissioner concluded that the claimant failed to meet her burden of proof of having sustained a compensable back injury on June 16, 1992.
The claimant argues on appeal that her pre-existing back condition does not preclude compensability and that the medical evidence as to the June 16, 1992 incident is not conflicting. She contends that the commissioner should have made findings in her favor from these subordinate facts.
Whether the claimant had suffered a prior back injury, and whether the medical evidence was or was not conflicting are factual determinations for the trial commissioner to make. D’Agostino v. City of Waterbury, 10 Conn. Workers’ Comp. Rev. Op. 4, 5, 942 CRD-5-89-11 (April 15, 1991); Janov v. General Electric Co., 4 Conn. Workers’ Comp. Rev. Op. 44, 45, 491 CRD-4-86 (March 27, 1987). The commissioner’s conclusions must stand “unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988), quoting Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979).
In this case, evidence existed to support a determination that claimant suffered back injuries due to a motor vehicle accident in 1988 resulting in a 10% permanent disability of her back. Evidence also indicated that claimant returned to her regular work duties directly after the June 16, 1992 incident, without the need of medication or time off from work. Additionally, more than a month’s time expired before claimant sought treatment on July 23, 1992. These facts are sufficient to support the legal conclusion of the trial commissioner. It would not be appropriate for us to substitute our conclusions for his. Fair, supra, 539-40. The trial commissioner’s decision is affirmed.
Commissioners Angelo L. dos Santos and Michael S. Miles concur.
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