Gagne v. Tilcon, Inc./Tomasso

The claimant was represented by Marshall Dudley, Esq., 35 Water Street, P.O. Box 395, Guilford, CT 06437.

The respondents were represented by Larry McLoughlin, Esq., Edward M. Henfey & Associates, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

This Petition for Review from the March 10, 1999 Finding and Denial of the Commissioner acting for the Third District was heard December 3, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the March 10, 1999 Finding and Denial of the Commissioner acting for the Third District. In that decision the trial commissioner found that the claimant’s multiple sclerosis, which was diagnosed in 1996, was not caused by his compensable injury of July 6, 1984. The trial commissioner thus denied the claimant’s request to reopen a stipulation which was approved on April 26, 1994. In support of his appeal, the claimant argues that the medical evidence indicates that in 1996 the claimant was diagnosed with multiple sclerosis which was caused by the 1984 injury. The claimant thus argues that it was error for the trial commissioner to deny his request to open and modify the approved stipulation.

The trial commissioner found that the claimant sustained a compensable injury on July 6, 1984 when he twisted his neck while operating an overhead drill, and that this injury was accepted by the respondents. Initially, Dr. Spencer was the claimant’s treating physician. The claimant continued working in his position as a maintenance engineer until the late 1980’s, at which time he changed his position because his condition had worsened. On April 26, 1994, the parties entered into a Stipulation to Date for indemnity benefits and a thirty-five percent permanent partial impairment. On September 9, 1996, the claimant was informed that he had multiple sclerosis by Dr. Guarnaccia, whom the claimant had been referred to by Dr. Spencer. The claimant continued working for the respondent employer until January 31, 1997.

Dr. Guarnaccia testified that it has not been scientifically established that a traumatic injury can cause multiple sclerosis, and that determining causation would amount to speculation. At the request of the respondents, the claimant was examined by Dr. Levy on October 29, 1997. He opined that the claimant’s injury could have precipitated an attack of multiple sclerosis if the multiple sclerosis existed at the time of the 1984 injury. Dr. Guarnaccia was of the opinion that the claimant did not have multiple sclerosis at the time of the 1984 injury. The trial commissioner concluded that the multiple sclerosis was not caused by the compensable injury of 1984.

In support of his appeal, the claimant argues that he became totally disabled due to his compensable injury and the multiple sclerosis, and that the medical evidence indicates that the multiple sclerosis was caused by the 1984 injury. We find no error, as it was within the discretion of the trial commissioner, as the trier of fact, to assess the credibility of all of the evidence, including the medical evidence. In his appeal, the claimant is essentially seeking to retry the facts of this case, which this board may not do.

When reviewing a trial commissioner’s decision, it is well established that this board “is obligated to hear the appeal on the record and not retry the facts….” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999) (quotations omitted). The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. O’Reilly, supra; McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted). In the instant case, the evidence in the record supports the trial commissioner’s conclusion that the claimant’s disability was caused by multiple sclerosis which was not caused by the compensable 1984 injury.

“[A]n Award by Stipulation is a binding award which, on its terms, bars a further claim for compensation unless Sec. 31-315, which allows for modification, is satisfied.” Jaworski v. Four Seasons Limousine, 15 Conn. Workers’ Comp. Rev. Op. 438, 439, 2200 CRB-7-94-11 (September 5, 1996), quoting Mongillo v. Terminal Taxi Co., 12 Conn. Workers’ Comp. Rev. Op. 197, 199, 1455 CRB-3-92-7 (March 7, 1994). “Like a stipulated judgment in Superior Court, an Award by Stipulation may be set aside without the consent of all parties only if it was obtained by fraud, misrepresentation, accident or mistake.” Gonzalez v. Electric Transport (Penske), 13 Conn. Workers’ Comp. Rev. Op. 6, 1729 CRB-1-93-5 (Oct. 13, 1994) (citations omitted). The decision whether to open a stipulated agreement falls within the trier’s discretion and will be overturned “only if such discretion was abused or if an unreasonable result was reached.” Jaworski, supra, quoting Gonzalez, supra. In the instant case, the trial commissioner found that the claimant’s multiple sclerosis was not caused by his compensable injury, and thus properly denied the claimant’s request to open the stipulation.