Gagne v. The Waterproofing Company

The claimant was represented by David A. Zipfel, Esq., Serignese, Petrone & Zipfel, 59 Burnside Ave., P. O. Box 280246, East Hartford, CT 06128-0246.

The respondents were represented by Dominick C. Statile, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the February 2, 1994 Finding and Award of the Commissioner acting for the First District was heard January 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and George A. Waldron.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the February 2, 1994 Finding and Award of the Commissioner for the First District. They argue on appeal that the commissioner improperly concluded that the claimant’s knee injury was causally connected to an earlier compensable injury. We affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to his elbows, back and left index finger on October 14, 1992 when he fell off a piece of scaffolding. The insurer accepted the compensability of these injuries in a voluntary agreement approved on January 11, 1993. The claimant’s finger and back injuries gradually healed, but his right master upper extremity wound up being 2.5 percent permanently partially disabled, even after surgery on April 15, 1993.

The claimant now alleges that he injured his left lateral meniscus knee shortly after that surgery while arising from a couch in his home. The respondents did not accept liability for this injury, as the claimant underwent a complete medial menisectomy of the left knee in 1980 after a serious work-related injury, for which he was compensated. In the face of conflicting medical reports, the commissioner concluded that the claimant’s right arm, left index finger and back injuries prevented him from arising from the couch naturally, and caused him to get up in such a manner as to twist his knee and cause it to “pop.” The commissioner explicitly distinguished the new lateral meniscus injury from the prior medial meniscus injury, finding that the tear in the claimant’s knee was due to a new injury and not a natural degenerative process. He awarded the claimant six months of temporary total disability benefits, from which the respondents have appealed.

The respondents argue that there is no medical evidence to support the award of benefits to the claimant, and that the commissioner erred in relying on the self-contradictory testimony of a witness. They contend that “the causal connection between the claimant’s elbow injury and his later knee injury, if one is in fact found to exist, is so tenuous that justice requires that the respondents not be held liable therefore.”

First, we will explain why the commissioner was entitled to rely on Dr. Barber’s testimony in reaching his decision. The trial commissioner is the trier of fact, and is charged with determining the weight of the evidence presented and the credibility of witnesses. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995). Where there are alleged inconsistencies in a witness’ testimony, it is the job of the commissioner to decide how trustworthy that testimony is. Maio v. L. G. Defelice, Inc., 1734 CRB-5-93-5 (decided March 22, 1995); see also Colello v. Dresser Industries, 13 Conn. Workers’ Comp. Rev. Op. 14, 15, 1691 CRB-4-93-4 (Nov. 3, 1994). Thus, our power of review over the issue raised by the respondents is a limited one.

Moreover, Dr. Barber explained the inconsistency in his testimony as his failure to realize that the atrophying of the claimant’s knee could have resulted from the earlier median meniscal tear rather than from the lateral tear in April of 1993. (Transcript of Barber Deposition, Nov. 18, 1993, p. 32). His previous opinion that the injury could not have occurred as the claimant stated was based on the advanced rate of atrophy in the knee at the time of his examination. Once the possibility that the claimant’s prior injury caused the atrophying dawned on Dr. Barber during the deposition, he reassessed his evaluation and stated that, based on a reasonable medical probability, the claimant’s lateral meniscal tear was caused by his rising from the chair as claimed. (Id., p. 27-28). The commissioner was certainly entitled to believe the doctor’s explanation behind his changed opinion and credit that testimony. We will not tamper with his judgment.

The primary argument by the respondents is that there was an insufficient causal connection between the 1993 knee injury and the 1992 compensable injuries to justify placing liability on the respondents. The commissioner credited the reports and testimony of Dr. Barber and Dr. Sweet, as well as the claimant’s testimony, in determining that the injury occurred on or about April 22, 1993 because the claimant was unable to stand up in a natural manner due to his previous compensable injuries. As discussed above, the commissioner was entitled to believe this testimony over that of Dr. Fisher, the respondents’ witness. This provides a sufficient factual foundation for the commissioner’s decision; the only question remaining is whether he correctly applied the law to the facts. Webb, supra, citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979).

In Hernandez v. Gerber Group, 222 Conn. 78, 86 (1992), our Supreme Court held that the requisite causal linkage existed between a preexisting disability and subsequent injury where treatment for a claimant’s compensable heart attack led to a permanent partial disability of his right leg. Even though there was no preexisting disability of the right leg, the fact that a preexisting condition contributed to the claimant’s heart attack allowed liability for the leg injury to be transferred to the Second Injury Fund as well. Id. This Board has had occasion to apply the reasoning of the Hernandez decision; for instance, we recently held that an employer can be held liable for a claimant’s back condition caused by an altered gait resulting from a compensable leg injury. Owens v. R.R. Donnelley & Sons, 1892 CRB-2-93-11 (decided May 3, 1995).

Here, the trial commissioner’s conclusion as to causation of the claimant’s knee injury falls directly in line with Hernandez and its progeny. There is no legal barrier to the application of the law of that case to these facts. Therefore, we affirm the commissioner’s decision.