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CASE NO. 3630 CRB-02-97-06
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 17, 1998
GALLAGHER BASSETT SERVICES
The claimant appeared pro se with respect to some issues on appeal, and was represented on other issues by Angelo Sevarino, Esq., 110 Day Hill Road, Windsor, CT 06095-1794.
The respondents were represented by Jennifer A. Hock, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review from the June 10, 1997 Finding and Dismissal of the Commissioner acting for the Second District was heard February 20, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 10, 1997 Finding and Dismissal of the Commissioner acting for the Second District. He raises numerous arguments on appeal, and has also filed a Motion to Submit Additional Evidence. Without reaching the issue of the Motion to Submit Additional Evidence, we find error, and reverse the trial commissioner’s decision with direction that the case be remanded for a new trial.
The trial commissioner found that the claimant had been employed by the respondent Xerox Corporation from 1983 through the date of the last formal hearing. A very hard-working individual and a successful salesman, the claimant alleged that his long work hours and uncomfortable seating arrangement had caused repetitive trauma to numerous body parts, especially his buttocks and lower spine. He worked many hours daily using a computer and telephone, and alternated between sitting on a hard wooden bar stool and a padded chair while working at Xerox’ Hartford office. When he first complained of pain in 1994, he only mentioned buttocks pain to his physicians. Later, he added complaints of pain in his arms, heel, feet, back, shoulders, and neck. The commissioner noted in her findings that the claimant’s description of how the injury occurred changed during the course of the formal hearings, which stretched from March 1996 to April 1997. She also did not find credible his testimony that he would work 20 or more straight hours without any kind of a break.
The trier made findings regarding three specialists seen by the claimant between 1994 and 1996. The first, Dr. Aron, an orthopedic surgeon, was told in October 1994 that the claimant’s problems seemed to have arisen from a new chair that he had purchased for his office. The second, Dr. Shifreen, a general medical practitioner specializing in the treatment of musculoskeletal disorders, noted upon first treating the claimant on February 23, 1995, that the claimant’s severe low back pain had begun in April 1994 when he sat in “a bad chair.” Finally, the claimant began seeing Dr. Cherniak, an occupational disease specialist without a specific background in orthopedics, for treatment after the second formal hearing on May 1, 1996. The commissioner found that Dr. Cherniak testified that the claimant had three allegedly work-related conditions: tight hamstrings, a problem with his lumbar spine, and a problem with his upper legs and buttocks. Dr. Cherniak stated that the diagnosis of ischial bursitis was appropriate, and is historically found in people who sit on hard surfaces without moving for long periods of time. He thought that the claimant had a favorable prognosis. The commissioner then noted in ¶ 34 of her Findings that “Dr. Cherniak further testified that the Claimant’s paraspinal and leg problems were not caused by using a bar stool.” (Emphasis in original.) She also remarked that the doctor had not reviewed the claimant’s testimony from prior formal hearings before himself testifying in September 1996.
The commissioner noted friction between the claimant and his employer that culminated in his demotion on January 1, 1995. The claimant’s supervisor, Tom Ready, testified that the claimant only worked 5-10% of his time in Xerox’ Hartford office, rather than at least 50%, as stated by the claimant. The trier observed a mutual dislike between the claimant and Mr. Ready. She found that the claimant was “admittedly angry” that the respondents have refused to settle his claim, and stated that “the Claimant’s own testimony that he threatened that he would cost Xerox millions if the adjuster did not settle was a startling admission of his motivation.” The trial commissioner concluded that the claimant had failed to establish compensable injuries to most of the body parts mentioned in his claim. Although he did suffer from sore buttocks, he did not establish that this condition was work-related. The commissioner found that neither Dr. Shifreen nor Dr. Cherniak’s treatment was obtained through a valid referral, and declined to authorize either as a treating physician. She then ordered that the claimant’s claims for injuries to his arms, hands, upper and lower legs, mid and low back, neck, shoulders and buttocks be dismissed. The claimant has appealed that decision to this board.
It is very well-settled that the burden of proving the compensability of an injury falls upon the claimant in a workers’ compensation case, and that the trial commissioner is the person who finds the facts and determines the credibility of both lay and expert witnesses. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). During an appeal, the commissioner’s findings can only be changed if they contain facts found without evidence or if they fail to include undisputed material facts. Kish, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). This standard of review gives substantial deference to the trier of fact in considering the appropriate weight to give the evidence. The trial commissioner is free to accept or reject the testimony or medical opinion of any witness, even if that opinion is apparently uncontradicted. Jusiewicz, supra.
Despite this broad degree of deference, the findings of the trial commissioner must have some basis in the evidence. In this case, there appears to be a patent inconsistency between the medical reports and testimony of Dr. Cherniak and the trial commissioner’s recollection of the substance of his medical opinion. Specifically, the trial commissioner found in ¶ 34 of her Finding and Dismissal that “Dr. Cherniak further testified that the Claimant’s paraspinal and leg problems were not caused by using a bar stool.” A review of ¶¶ 26-36 of the findings implies that Dr. Cherniak was not of the opinion that the claimant’s physical problems were related to his employment at Xerox. The claimant attempted to clarify these findings in his Motion to Correct, but his requested corrections were denied. See Admin. Reg. § 31-301-4.
In fact, Dr. Cherniak’s June 4, 1996 medical report states that “[i]t would appear etiologically that most of these postural problems originated from [the claimant’s] sitting upright over many hours per day on a hard stool without cushioning, padding, or support.” Claimant’s Exhibit T. In his testimony, the doctor stated that, within a reasonable degree of medical probability, he thought that there was a causal connection between the claimant’s work environment and his physical condition. September 16, 1996 Transcript, p. 69. Later, Dr. Cherniak specifically stated that the most likely source of the claimant’s ischial bursitis would have been his contact with the wooden bar stool, assuming that the claimant actually spent substantial time sitting on such a stool. Id., 81, 86. Although the trier referred to conflicting histories that the claimant presented concerning the mechanism of his claimed injuries, she did not indicate in her findings that she thought the claimant was exaggerating regarding the amount of time he spent sitting on that stool, or that she was reading Dr. Cherniak’s testimony in light of her own findings regarding the veracity of the history that the claimant provided his physicians. The commissioner’s finding regarding the substance of Dr. Cherniak’s testimony is contradictory to the medical opinion that he offered, and the findings do not explain the reason for that discrepancy.
Because the testimony of Dr. Cherniak is integral to the claimant’s case, we cannot say that the trial commissioner’s misconstrual of that testimony was immaterial to the outcome of her decision. Therefore, this case must be remanded. See Uva v. Valleries Transportation Service, Inc., 13 Conn. Workers’ Comp. Rev. Op. 106, 108, 1625 CRB-7-93-1 (Jan. 31, 1995). We believe that the nature of the error here also requires that a new trial be given to the claimant, so that the testimony in question can be offered anew before a different trial commissioner. As such, all other issues on appeal are hereby rendered moot.
Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.
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