Moawad v. American Eagle

The employer and its insurer were represented by David J. Weil, Esq., Nuzzo & Roberts, P.O. Box 747, Cheshire, CT 06410.

This Petition for Review from the September 30, 1997 Finding and Dismissal of the Commissioner acting for the Sixth District was heard January 8, 1999 before a Compensation Review Board Panel consisting of the Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the September 30, 1997 Finding and Dismissal of the trial commissioner acting for the Sixth District. In that decision the trial commissioner concluded that the claimant’s compensable October 29, 1994 injury did not precipitate his need for surgery and was not a substantial factor in producing symptoms in August of 1995. In support of his appeal, the claimant contends that the injury of October 29, 1994 was the substantial factor which caused his need for surgery and symptoms in 1995. The claimant specifically cites the medical evidence and the depositions of the physicians regarding this issue. In essence, the claimant seeks to retry the facts of his case, which this Board may not do.

In the instant case, the trial commissioner found that the claimant sustained a compensable injury to his back on October 29, 1994 while working for the respondent employer as a baker. On that date, the claimant stepped back while lifting a fifty pound bag and struck his lower back on a metal bar. The claimant was treated by Dr. Clukey, Dr. Galena, and Dr. Engel who diagnosed an acute contusion of the coccyx and sacrum and lumbosacral muscle spasm. Prior to this injury, the claimant had sustained a compensable injury to his lumbar spine on June 22, 1989 while working at Dunkin Donuts and was involved in a motor vehicle accident on June 12, 1992 which resulted in additional lumbar spine injury.

The trial commissioner further found that on December 30, 1994 the claimant was evaluated by Dr. Galena, who found that the claimant’s back had substantially improved and noted that the claimant stated he was able to walk and run. On January 16, 1995 the claimant was evaluated by Dr. Galena who found the contusion of the coccyx resolving and the lumbosacral sprain resolved and discharge the claimant from care. There is no record of medical treatment to the claimant’s back from January 16, 1995 to August 4, 1995 when the claimant was seen by Dr. Clukey. Dr. Becker performed an independent examination of the claimant at the request of the respondents. Dr. Becker testified that the claimant’s October 29, 1994 injury was a self limiting lumbar sprain. Dr. Becker compared the claimant’s 1995 MRI films to the CT scan reports of December 11, 1992 which were made subsequent to the claimant’s automobile accident on June 12, 1992. He found that the claimant’s disc herniation in 1995 was the same or slightly improved from the 1992 herniation. (Finding No. 29; 3/27/97 Depo. at p. 8-10).

Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the trial commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the trial commissioner’s conclusion that the claimant’s back condition in August of 1995 and his need for surgery were not caused by the injury of October 29, 1994 was based upon the trial commissioner’s assessment of the evidence and is fully supported by the record. Specifically, the trial commissioner chose to rely upon the opinion of Dr. Becker, an orthopedic surgeon, who conducted an independent examination of the claimant. Dr. Becker opined that the claimant’s back condition and need for surgery were not caused by the October 29, 1994 injury. The trial commissioner chose not to rely upon the opinion of the claimant’s treater, Dr. Engel, noting that Dr. Engel was not provided with a complete history of prior injuries. We have repeatedly held that it is within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of the physician who conducted an independent medical examination than to the opinion of the claimant’s treater. Sherman v. Construction & General Laborers Union Local 390, 3056 CRB-5-95-5 (Jan. 8, 1997), (citing Hawley v. Shell Oil Co., 13 Conn. Workers’ Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995)).