Levesque v. Consumer Interstate

The claimant was not represented at oral argument. At trial, he was represented by Claudia Weiss, Esq., Weiss & Weiss, 133 School St., Danielson, CT 06239-3023.

The respondents were represented by Michael J. McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the October 21, 1993 Finding and Dismissal of the Commissioner acting for the Second District was heard February 24, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 21, 1993 Finding and Dismissal of the Commissioner for the Second District. The claimant argues on appeal that the commissioner improperly determined that he failed to prove a causal relation between his disability and his employment. We affirm the trial commissioner’s decision.

The claimant suffered a back strain on June 2, 1992, while bending over from a sitting position at his desk. Dr. Wesler, his family doctor, opined that he suffered from a back strain and scoliosis. X-rays showed that the claimant had a compression fracture of his spine at D-6 and D-7, whereupon Dr. Wesler concluded that the claimant had osteoporosis, and referred him to Dr. Lang. Dr. Lang was unable to explain the advanced degree of the disease, but determined that an unspecifiable percentage of the condition preexisted the claimant’s back strain. The claimant was also examined by Dr. Margolis, an independent physician, who opined that the injury was not an aggravation of a preexisting condition because it was asymptomatic prior to the back strain. However, he stated that the preexisting condition strongly influenced the injury, perhaps by ninety-nine percent.

The commissioner found that the claimant was totally incapacitated to work, as per the opinions of both Drs. Lang and Margolis. She found, however, that this incapacity was not causally related to the June 2, 1992 back strain. Neither Dr. Lang, who could only speculate as to the percentage of disability due to the injury, which he guessed to be fifty percent, nor Dr. Margolis provided an opinion sufficient to establish the requisite causal connection between the injury and the disability in the commissioner’s view. As the claimant had not met his burden of proof, the trial commissioner dismissed his claim.

The claimant argues in his brief that the commissioner’s conclusion is inconsistent with the facts found, and that the evidence sufficed to establish his claim for temporary total disability benefits. It is clear from the findings and the transcript, however, that Dr. Lang’s medical opinion was speculative as to the effect of the back injury on the claimant’s osteoporosis, and that his fifty percent figure was simply an unscientific guess. (Transcript of July 21, 1993, p. 23.) The commissioner was entitled to determine the credibility of this testimony. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995), citing Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). We cannot say on review that the trial commissioner erred in declining to place more weight on Dr. Lang’s opinion.

A commissioner’s determination as to whether an injury arose out of and in the course of a claimant’s employment is factual in nature, and this Board is bound by those findings if they are supported by the evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539-41 (1988). Likewise, a commissioner’s conclusions must stand unless they result from an incorrect application of the law to the facts found or from an inference unreasonably or illegally drawn from them. Id., 539. In this case, the claimant had to show that his employment proximately caused his injury. Neibler v. Waldbaum’s Foodmart, 1851 CRB-3-93-9 (decided May 11,1995). The commissioner concluded that he did not meet that burden, which is consistent with the evidence discussed above.

The fact that the back sprain occurred at work did not require the commissioner to find that it was a proximate cause of his osteoporosis. Indeed, an act can be considered too trivial to recognize it as a legal cause. Id., citing McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118 (1987). We thus find no error in the commissioner’s dismissal of this claim.