Han v. Amgraph Packaging, Inc.

The claimant was represented by Brian Prucker, Esq., Fitzgerald & Prucker, 1127 Tolland Tpke., Manchester, CT 06040.

The respondents were represented by Brian E. Prindle, Esq., 627 Main St., Manchester, CT 06040.

This Petition for Review from the June 7, 1994 Finding and Award of the Commissioner acting for the Second District was heard March 24, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the June 7, 1994 Finding and Award of the Commissioner for the Second District. They argue on appeal that the commissioner erroneously found that the claimant suffered a compensable injury arising out of and in the course of his employment. We affirm the trial commissioner’s decision.

The commissioner found the following relevant facts. The claimant injured his left hip on June 1, 1992 when he stood up from a bending position after tying strapping around a pallet. Dr. Edgar diagnosed him with bilateral hip avascular necrosis, with the left hip in worse condition than the right hip. The claimant required surgery on both hips, including a partial left hip replacement. Dr. Edgar opined that the necrosis was present prior to June 1, 1992, that its etiology was unknown, and that the June 1, 1992 incident caused the ultimate collapse of the left hip femoral head, with the pre-existing necrosis making the subsequent disability materially and substantially greater. He also opined that the right hip condition was not related to the June 1, 1992 incident.

Dr. Santoro, an orthopedist who examined the claimant on behalf of the respondents, opined that the necrosis was a long-standing, pre-existing condition of unknown etiology, and that the June 1, 1992 incident accelerated the disease. He also opined that the necrosis made the injury materially and substantially greater. The commissioner concluded that the June 1, 1992 incident permanently aggravated and accelerated the pre-existing left hip condition, and awarded total disability benefits from August 21, 1992 to April 12, 1993, along with the payment of reasonable medical bills. The respondents have appealed from that decision.

The respondents raise two related arguments. They contend that the claimant failed to meet his burden of proof that his disability was caused by his work-related injury, and they contend that the claimant’s alleged injury did not arise out of his employment as a matter of law. “An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or the conditions under which it is required to be performed.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), affirmed, 229 Conn. 587 (1994); Bell v. U. S. Home Care Certified of Connecticut, 1792 CRB-1-93-8 (decided April 21, 1995).

“Determining whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” Crochiere v. Board of Education, 227 Conn. 333, 346 (1993). “‘The power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he conclusions drawn by him from the facts found 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.’” Id., 347, citing Fair v. People’s Savings Bank, 207 Conn. 535, 538-39 (1988). Additionally, the commissioner has discretion to choose which testimony and medical evidence to credit in making his factual findings, and this board may not second-guess those decisions. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995).

All parties agree that the claimant’s pre-existing necrosis played a primary role in causing his disability. There is also no dispute, however, that the claimant’s left hip symptoms began after the June 1, 1992 bending incident. When asked whether the June 1, 1992 episode was a substantial factor in causing the need for left hip surgery based on reasonable medical probability, Dr. Edgar stated that “the injury of June, 1992 in fact witnessed the collapse that occurred. So while he had the avascular necrosis prior to that time, I think that injury significantly, materially, and substantially affected the course of the disease within that joint and therefore subsequent treatment including the surgery for it is related to that injury.” (Deposition of Dr. Edgar, March 24, 1994, p. 12-13.) This opinion provides sound support for the commissioner’s finding that the June 1, 1992 incident permanently aggravated the pre-existing hip condition. It is not our province on review to disturb that factual conclusion. Webb, supra.

In past cases, we have noted that certain circumstances often play so minor a part in leading up to an injury that the law cannot recognize them as causes. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118 (1987); Niebler v. Waldbaum’s Foodmart, 1851 CRB-3-93-9 (decided May 11, 1995). Where the commissioner decides that a particular incident, such as the one in this case, played a causal role in an injury, however, we must ascribe certain deference to that factual determination.

There is no question that the claimant’s bending over to tie strapping on a pallet was an act arising out of and in the course of his employment with the respondent. The fact that it sounds like a very commonplace action does not make it any less work-related than if the claimant was injured carrying a 75-pound steel drum. The commissioner was legally entitled to reach the conclusion that the bending incident proximately caused the claimant’s disability, as there is medical evidence to support that finding. Therefore, we must affirm the trial commissioner’s decision.