Van Straten v. Hartford Courant

The claimant was represented by Gina Cocchiola, Esq., Hersh & Ritson, 21 Oak Street, Suite 603, Hartford, CT 06106.

The respondent was represented by Kevin D. O’Leary, Esq., Cummings & Lockwood, City Place 1, Hartford, CT 06103-3495.

This Petition for Review from the March 10, 1999 Finding and Award of the Commissioner acting for the Eighth District was heard October 15, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondent has petitioned for review from the March 10, 1999 Finding and Award of the Commissioner acting for the Eighth District. They contend on appeal that the trier erred by finding the claimant’s need for surgery on his right knee was due to the effects of a compensable injury. We affirm the trial commissioner’s decision.

The trier found that the claimant was working for the respondent Hartford Courant on August 25, 1993, when he slipped and fell during the course of his employment, hurting his right knee and left shoulder. He reported the mishap to his supervisor and filed an incident report. At first, the claimant’s main problem was an inability to lift his left arm. His supervisor advised him to receive medical treatment for that symptom, which he did. Later, the claimant began to notice pain in his right knee, which worsened over time. He sought treatment with his family physician, who referred him to Dr. Mazzara, an orthopedist. Dr. Mazzara recommended arthroscopic surgery in October 1997, and was of the opinion that the claimant’s fall had aggravated a pre-existing condition of his knee. In July 1998, Dr. Mazzara’s partner, Dr. Passaretti, advised the claimant that the only surgical procedure that would benefit him was total knee surgery.

The trial commissioner found that the claimant did not have pain or problems in his right knee prior to August 25, 1993, and was quite active until that time, but is now far less mobile. He accepted Dr. Mazzara’s opinion regarding the aggravation of a latent arthritic knee condition, and specified that he found the doctor’s testimony credible. The trier expressly rejected the testimony of Dr. Fisher, an independent medical examiner who had opined that the claimant’s need for knee surgery was unrelated to his compensable injury. The commissioner authorized the knee surgery, and ordered the respondents to take financial responsibility for it, as well as temporary total disability benefits from the date of the surgery onward. The respondent has appealed that decision to this board, along with the commissioner’s denial of their Motion to Correct.

Whether or not a claimant’s medical condition was caused by an accepted compensable injury is a factual question for the trial commissioner to resolve. Moawad v. American Eagle, 3701 CRB-6-97-10 (Aug. 25, 1999). Where there are conflicting medical opinions that state their diagnoses within a reasonable degree of medical probability, the trier of fact must decide which is the most persuasive. Wilson-Shirley v. Yale University, 3355 CRB-3-96-6 (Nov. 4, 1997). As the factfinder, it is his duty and prerogative to weigh the credibility of the medical evidence and the testimony of the witnesses, and draw inferences based on his impressions. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). When the trier receives a Motion to Correct, he must evaluate the proposed changes in that same way. He need not grant corrections that will not affect the outcome of the case, and on review this board may not retry the matter or independently appraise the evidence underlying the proposed corrections. Pallotto, supra. On appeal from a commissioner’s decision, the factual findings may be disturbed only if they have no basis in the evidence, or if they omit accepted material facts. Webb, supra, 71. The legal conclusions drawn by the trier also 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. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra.

The respondent raises two separate arguments on appeal. They first assert that there is insufficient evidence in the record to support a finding that the claimant injured his knee on August 25, 1993. The basis for this claim is essentially that the claimant waited several months after the injury before he began complaining of knee pain, and there were discrepancies in the record regarding the date he began to experience such symptoms. They argue in their brief that “[i]t is simply not credible that the Claimant became aware of the knee injury in September of 1993, as he testified, but did not discuss it with his physician when he was seen shortly thereafter. Furthermore, Dr. Mazzara’s initial report, which was dated January 27, 1994, the closest medical report to the incident, states that the injury to Mr. Van Straten’s knee ‘occurred’ a week after the fall in ‘October of 1993.’” Brief, 6.

To put it bluntly, this board does not have the authority on review to decide that a claimant’s testimony is “not credible” as a matter of law. If the trial commissioner chooses to accept a claimant’s explanation regarding any delay in reporting certain symptoms, we cannot reverse his judgment regarding the truthfulness and reliability of the witness on appeal. Roche v. Danbury Hospital, 3592 CRB-7-97-5 (July 13, 1998); cf. Prescott v. Echlin, Inc., 15 Conn. Workers’ Comp. Rev. Op. 339, 341, 2242 CRB-3-94-12 (June 25, 1996), appeal dismissed, A.C. 16150 (Feb. 5, 1997). Here, the claimant testified that he did not suffer an additional fall in October 1993, or at any other time after his August 1993 compensable injury. November 16, 1998 Transcript, 20. He stated that the error in Dr. Mazzara’s records likely originated with his own inability to recall dates accurately while giving the doctor his history. Id. The trier was entitled to adopt that rationale. In his findings, the commissioner stated that the claimant had no injuries to his right knee subsequent to the compensable injury. Findings, ¶ 21. There is nothing legally erroneous with the drawing of that inference, and we may not alter it on review.

The respondent also argues that the reports of Drs. Mazzara and Passaretti do not establish a sufficient causal connection between the claimant’s 1993 fall and his current need for knee replacement surgery. Again, we perceive no legal error in the trier’s exercise of his factfinding discretion. On December 30, 1997, Dr. Mazzara clarified that the claimant’s 1993 injury “aggravated his knee and caused him to have the most recent problems and the need for surgery.” Claimant’s Exhibit C. Dr. Passaretti, who was aware of the past discussions regarding arthroscopic surgery and debridement, stated on July 28, 1998 that the only surgical procedure that would benefit the claimant was total knee arthroplasty. Id. Taken together, these reports can be legitimately interpreted to establish a causal connection between the claimant’s compensable injury and his need for total knee surgery within the requisite “reasonable degree of medical probability.” See O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-18 (1999).

The trial commissioner chose to accept these opinions. Findings, ¶ 22. This board cannot overrule his assessment of credibility, for if we did, we would be substituting our own findings in place of his. O’Reilly, supra; Rogers v. Laidlaw Transit, Inc., 45 Conn. App. 204, 206 (1997). Instead, we must defer to the trier’s decision to assign weight to the presumptively competent medical opinions of Drs. Mazzara and Passaretti, and abide by his ruling. Keenan v. Union Camp Corp., 49 Conn. App. 280, 284-86 (1998). Therefore, we hold that the trial commissioner’s decision must be affirmed. Insofar as any benefits due the claimant have remained unpaid pending the outcome of this appeal, we also award him interest as required by § 31-301c(b).