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Sylvia & Sylvia v. Victorian Salon

CASE NO. 1976 CRB-2-94-2














The claimants were represented by Gerard R. Rucci, Esq., Embry & Neusner, 118 Poquonnock Road, P. O. Box 1409, Groton, CT 06340.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the February 10, 1994 Finding and Dismissal of the Commissioner acting for the Second 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 Amado J. Vargas.


JESSE M. FRANKL, CHAIRMAN. The claimants, the Estate of Patricia Sylvia and her dependent widower, Joseph Sylvia, have petitioned for review from the February 10, 1994 Finding and Dismissal of the Commissioner for the Second District. They contend on appeal that the commissioner erred in finding that the claimants had not proven that Patricia Sylvia (Sylvia) suffered a compensable heart attack that caused her total disability and eventual death. We affirm the trial commissioner’s decision.

On May 10, 1991, Sylvia was a part-time employee of the respondent Victorian Salon (employer). The claimants contend that she suffered a myocardial infarction while at work on that afternoon, after which she was totally disabled until her death. The heart attack allegedly occurred while Sylvia was assisting a stroke patient into a shampoo chair. The claimants produced as a witness a fellow employee who observed the claimant to be in pain after the lifting incident, and heard Sylvia complain of pain in her left arm and shoulder. The decedent’s husband corroborated this description of Sylvia’s symptoms.

The commissioner found that Sylvia had been experiencing left-sided arm, shoulder and hand pain in the winter and spring of 1991, and had filed a Form 30C noting left hand carpal tunnel syndrome. She had treated with Dr. Willetts for these symptoms before May 10, 1991. Two weeks after that date, Sylvia visited a chiropractor for treatment of her left arm and shoulder pain. She then went to the emergency room four days later for neck and left arm pain with a follow-up visit and meeting with Dr. Willetts on June 2, 1991. After numerous objective tests were performed, Sylvia was referred to her internist, Dr. Lentz, who diagnosed her as having a heart problem. He performed a test on August 2, 1991, which indicated that Sylvia had suffered a myocardial infarction of uncertain date. The claimant was subsequently seen by Dr. Kolman, a Boston, Massachusetts heart specialist, who corroborated the diagnosis of a myocardial infarction at an uncertain earlier date. The commissioner noted that Sylvia had required treatment for Lyme disease in the early summer of 1991, and was also a smoker with a one-pack-per-day history. She died on January 30, 1992 without an autopsy being performed.

The commissioner found that the medical treaters generally concurred that Sylvia sustained a left shoulder/arm orthopedic injury as a result of the lifting incident. He also noted that Sylvia had not complained of shortness of breath or left-sided jaw pain through the time of her emergency room visits. He concluded that the claimants had not shown by a preponderance of the evidence that Sylvia had suffered a heart attack on May 10, 1991 during her employment. He therefore dismissed the claimants’ claims, from which they appeal. A Motion to Correct was also denied in its entirety on April 18, 1994.

The claimants argue that the respondents offered no evidence to refute the testimony of the two medical experts and three treating physicians in support of the claimants’ claim, and that the undisputed facts detailed in the Motion to Correct should have been incorporated into the commissioner’s findings. To begin, we note that it is a question of fact for the commissioner as to whether an injury arose out of and in the course of a claimant’s employment. Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). “[T]he conclusions drawn by the commissioner from the facts found must stand unless they result from a misapplication of the law to the facts or from an illegal or unreasonable inference drawn from the subordinate facts, and that this board may not retry the facts.” Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). “To the extent that the commissioner’s finding discloses facts, his finding cannot be changed unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed.” Grady v. St. Mary’s Hospital, 179 Conn. 662, 669 (1980). A material fact is one that will affect the outcome of a case. Plitnick, supra. Therefore, it is not reversible error for a commissioner to deny a Motion to Correct where the requested corrections would have no impact on the ultimate outcome of the case. Id.; see also Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995).

Here, the requested corrections by the claimants were primarily items from the medical reports buttressing the opinions of the doctors that the claimant had suffered a prior myocardial infarction, and stressing the likelihood that it arose from the May 10, 1991 lifting incident. They also included some statements by Sylvia’s co-worker who witnessed the lifting incident. Not only are these corrections superfluous with respect to the outcome of the case, but most of them also depend on the testimony of witnesses and experts. The commissioner, and not this Board, is entitled to determine the weight of the evidence and the credibility of the testimony offered by lay and expert witnesses. Webb, supra. This includes doctors and their medical reports. Nasinka v. Ansonia Copper and Brass, 1592 CRB-5-92-12 (decided April 27, 1995); Colello v. Dresser Industries, 13 Conn. Workers’ Comp. Rev. Op. 14, 15, 1691 CRB-4-93-4 (Nov. 3, 1994). It is not our place to judge the weight that he should have given that testimony, and we cannot say it was error to deny the requested corrections.

We note that a commissioner is not required to credit testimony even where it is uncontested, as he or she may still judge the testimony to be unreliable or inconclusive. See Griffith-Patton v. State of Connecticut/Department of Agriculture, 1888 CRB-1-93-11 (decided March 10, 1995). In this case, however, the evidence was hardly conclusive as to the date, time and cause of the claimant’s heart attack. For example, Dr. Willetts reported that the claimant did not mention her work injury until June 13, 1991, during a follow-up visit over one month after the alleged heart attack occurred. He also confirmed at his deposition that he did not feel qualified to opine as to whether or not Sylvia actually had a heart attack and if she did, its cause. (Transcript of Willetts Deposition, p. 23).

Additionally, Dr. Lentz noted that, at the time of his initial evaluation of Sylvia, he did not suspect a cardiac cause for her left shoulder, neck and arm pain. (Transcript of Lentz Deposition, p. 25.) He also agreed that there was no way that he could determine from the August 2, 1991 EKG reading how long ago her myocardial infarction had occurred. (Id., 28). Indeed, there is no conclusive evidence in the record as to when and if the myocardial infarction occurred at all. We therefore cannot say that the commissioner was required to cull from the medical testimony the conclusion that the claimants had proven that Sylvia suffered a heart attack on May 10, 1991, and we will not substitute our judgment for his.

The trial commissioner’s decision is affirmed.

Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.

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