Savanella v. O & G Industries, Inc.

The claimant was represented by Mary Piscatelli Brigham, Esq., 161 North Main St., Waterbury, CT 06702.

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

This Petition for Review from the July 31, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District was heard April 4, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 31, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District. He argues on appeal that the commissioner erred by denying his Motion to Correct, and by failing to find that his workplace injury at least aggravated his pre-existing hip condition. We affirm the trial commissioner’s decision.

The claimant testified that he began to experience back pain after an incident that occurred while he was driving a front end loader at work on December 27, 1985. He waited ten days to seek treatment, and then missed four weeks of work due to the injury. He was released to full duty in February 1986, and did not mention back or hip problems again for several years. On December 11, 1990, Dr. Rubin advised him that he would eventually need to have both his hips replaced due to degenerative joint disease. The claimant denies telling Dr. Rubin that he had been diagnosed with rheumatoid spondylitis ten years earlier, and maintains that his condition results from the December 27, 1985 incident and/or that his employment substantially aggravated his preexisting disease regardless of its initial cause.

In 1991, the claimant was treated by Dr. Gibilisco, a rheumatologist, who found extensive sclerosis of the lumbosacral spine. He also sought treatment with Dr. Taylor, an orthopedist, whose records reflected that the claimant’s 1985 back problems had resolved themselves spontaneously with no symptoms at the time of the 1991 visit. He thought the claimant had degenerative arthritis bilaterally, and referred the claimant to his associate, Dr. Flynn, who eventually replaced the claimant’s hip on January 23, 1995. Dr. Flynn opined that the claimant’s continued employment with the respondent was a substantial factor in aggravating his arthritic condition.

An independent medical examination was conducted by Dr. Pasternak, an orthopedic surgeon, on May 10, 1995. He opined that the hip condition was simply the natural progression of the slipped capital femoral epiphysis that had developed when the claimant was a teenager, and did not think that his employment played any part in his need for a hip replacement. Dr. Pelker, another orthopedic surgeon, performed a § 31-294f C.G.S. examination on September 20, 1995, and also stated that the claimant’s 1985 back strain had no relationship to his need for a hip replacement. The commissioner ruled that the claimant had failed to meet his burden of proof, and dismissed his claim. The claimant has appealed that decision.

The claimant asserts that the trier erred by denying his Motion to Correct. In reviewing the denial of such a motion, this board may not reassess the commissioner’s evaluations of the testimony and the evidence. Brown v. Connecticut Aerosol, 3169 CRB-3-95-5 (decided April 7, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The burden is upon the claimant to prove the causal relationship between his condition and his employment, and the trier is entitled to assess the credibility of the evidence he offers to that end, even if there is seemingly no contrary testimony. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Brown, supra; Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). To succeed in this appeal, the claimant must show that the trial commissioner’s conclusion that he had not proven compensability is unsupported by the findings. Webb, supra, 71. In turn, the findings themselves may be changed only if they contain facts found without evidence or fail to include undisputed material facts. Id.

The strongest affirmative support for the commissioner’s conclusion comes from her findings regarding the testimony of Drs. Pasternak and Pelker. The claimant attempted to modify the findings to reflect that Dr. Pasternak in fact stated that the claimant’s work conditions were a substantial factor in accelerating his degenerative joint disease, and that he formulated his opinion based on improper grounds. He also sought to add findings that neither Dr. Flynn nor Dr. Pelker agreed with Dr. Pasternak’s opinion that the claimant’s hip problems were related to slipped capital femoral epiphysis, and that Dr. Pelker had no opinion as to whether operating heavy construction equipment was a substantial factor in aggravating the degenerative joint disease. These corrections were all denied by the trier.

A review of Dr. Pasternak’s testimony (Respondent’s Exhibit 4) reveals that he stated that the claimant’s job may have substantially accelerated his hip degeneration only in response to a question that required him to assume a number of facts that were in dispute, including the fact that the claimant experienced hip pain every other month between 1985 and 1990, but sought no treatment for it. Id., 44-46. When asked by respondents’ counsel to assume that the claimant did not drive over rough terrain on a daily basis while sitting in a defective seat, the doctor stated that he would change his opinion. He explained that “[i]t would take a substantial amount of trauma frequently to, to accelerate the condition. Because he’s going to get this irregardless[sic] of whether he drives, does that or not.” Id., 47. He also maintained his diagnosis of slipped capital femoral epiphysis, expressly disagreeing with the opinions of other doctors who maintained that a person suffering from such a condition would experience severe hip pain and be unable to walk as far back as childhood. Id., 36-37, 48.

Dr. Pasternak was asked about his contact with the respondents prior to examining the claimant. His memory appeared uncertain as to the order of such events, but eventually it became apparent that he had conferred with an attorney who represented the respondents and that he had viewed a videotape of the claimant’s vehicle in operation before actually examining the claimant. However, he stated several times that his medical opinion was based on his examination of the claimant and the x-rays he reviewed, and not his prior meetings with attorneys. Id., 29, 49. He also explained the reasoning behind his diagnoses throughout his testimony. The commissioner was entitled to credit Dr. Pasternak’s testimony if she found it credible, even if his diagnosis was based on a condition that other doctors did not think the claimant had. There is no rule in workers’ compensation law requiring the commissioner to credit the viewpoint shared by the greatest number of physicians. A commissioner is not a ballot counter. Thus, the trier was not bound to disregard Dr. Pasternak’s testimony.

We also note that, contrary to the claimant’s assertion, Dr. Pelker’s opinion does not ignore the issue of whether the claimant’s 1985 injury or subsequent trauma accelerated his degenerative joint disease. Instead, he stated that he did not believe that the 1985 back strain injury or the claimant’s operation of heavy construction equipment “in any way resulted in the degenerative changes” that caused the claimant to need hip surgery. Respondent’s Exhibit 6. This was so even though Dr. Pelker expressly disagreed with Dr. Pasternak’s opinion that the claimant suffered from slipped capital femoral epiphysis. The combination of these two reports offers more than enough evidence to justify the commissioner’s decision to dismiss the instant claim. We may not reassess the weight of this evidence on review. See Webb, supra.