D’Agostino v. Hamilton Standard

The claimant was represented by Brian Prindle, Esq., P.C., 72 Bissell Street, Manchester, CT 06040-5304.

Notice also sent to: Ralph Russo, Esq., 49 Welles Street, Suite 212, Glastonbury, CT 06033.

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

This Petition for Review from the November 12, 1999 Finding and Award of the Commissioner acting for the Sixth District was heard July 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the November 12, 1999 Finding and Award of the commissioner acting for the Sixth District. In that decision the trial commissioner found that the claimant sustained a compensable cervical spine injury, specifically, he found that she had cervical degenerative disc disease which was aggravated by her secretarial duties, causing her to become symptomatic and in need of medical treatment. In support of their appeal, the respondents argue that the trial commissioner erred by not accepting the opinion of Dr. Becker, who performed an independent medical examination at the request of the respondents. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant was employed with the respondent employer for thirty-three years performing general secretarial duties which included computer keyboard use. The claimant testified that she spends six to six and one-half hours per day on the keyboard, and the trial commissioner found that her secretarial duties were not exclusively keyboard use. The claimant experienced left arm symptoms in 1997 and was seen by Dr. Organ, an orthopedic surgeon, who referred her to Dr. Lerer, a neurologist. On July 15, 1997, Dr. Lerer reviewed an MRI which showed a small herniated disc on the left at C6-7. Dr. Lerer referred the claimant to Dr. Palmisano, a chiropractor.

On June 16, 1998, Dr. Lerer opined that the claimant’s symptoms were a combination of a pre-existing cervical spine problem as well as repetitive movement at work which aggravated her symptomology. The claimant was also evaluated by Dr. Beck, who opined that the claimant had a cervical strain which was the result of repetitive microtrauma at work. At the request of the respondents, the claimant was evaluated by Dr. Becker, who diagnosed the claimant with degenerative disc disease or development of bone spurs or osteophytes which was not caused by the claimant’s employment with the respondent employer. Dr. Becker further testified that work activities such as repetitive rotation of the cervical spine or use of a telephone cradle could aggravate a pre-existing disease. He further testified that his understanding was that the claimant’s job involved operating a computer keyboard eight hours a day. The trial commissioner concluded that the claimant’s degenerative disc disease was aggravated by her work duties, causing her to become symptomatic and to require medical care, and thus her condition was compensable.

In support of their appeal, the respondents contend that based upon the opinion of Dr. Becker, the claimant’s condition is not related to her employment. It is well settled that this board does not retry the facts because the power to determine the facts rests with the trial commissioner as the trier of fact. Fair v. People’s Savings Bank, 207 Conn. 535, 541 A.2d. 1118 (1988). 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). 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). “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it….” Id. at 349 (citations omitted).

In the instant case, the trial commissioner weighed the testimony of Dr. Becker, Dr. Beck, Dr. Lerer, and other medical providers, along with the claimant’s medical records and testimony from the claimant. He found most persuasive the opinions of Dr. Beck and Dr. Lerer that a causal relationship existed between the claimant’s work activities and her cervical spinal condition. We are not in a position to reassess this evidence on appeal and disturb the trier’s finding. See Keenan v. Union Camp Corp., 49 Conn. App. 280 (1998); Rogers v. Laidlaw Transit, 45 Conn. App. 204 (1997). We note that the resources of this commission are limited, and we therefore question the decision to appeal a trial commissioner’s award which was clearly based upon the weighing of competing medical opinions, as such a decision is solely within the discretion of the trial commissioner.