Freeman v. UTC/Sikorsky Aircraft

The claimant was represented by David Laudano, Esq., Law Office of Raymond W. Ganim, 2192 Main Street, Stratford, CT 06497.

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

This Petition for Review from the April 12, 2000 Finding and Dismissal of the Commissioner acting for the Fourth District was heard December 1, 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 claimant has petitioned for review from the April 12, 2000 Finding and Dismissal of the Commissioner acting for the Fourth District. In that decision, the trial commissioner concluded that the claimant failed to sustain his burden of proof regarding his claim that he suffered a herniated disc on September 30, 1993. In support of his appeal, the claimant contends that the commissioner erred by dismissing his claim. We affirm the trial commissioner’s decision.

The trial commissioner found the following relevant facts. The claimant contended that a work injury which occurred on September 30, 1993 was the cause of his disc herniation and need for medical treatment from October of 1995 and ongoing. The respondents agreed that the claimant sustained a compensable back injury on September 30, 1993, but contended that this injury was self-limited and that the claimant recovered after a short course of chiropractic treatment. The trial commissioner found that credibility was central to deciding this issue. The trial commissioner found that the claimant returned to work following the September 30, 1993 injury during both the first and second week of October 1993. The claimant was treated by Dr. Sheehy, a chiropractor, on thirteen occasions during October and November of 1993. When Dr. Sheehy discharged the claimant, he indicated in his report that the claimant was cleared to return to work full time with no restrictions, and further indicated that the claimant’s back pain had improved 90% and that he had recovered.

The claimant acknowledged that he did not see any doctors or chiropractors for his back between October 1993 and October 1995. Moreover, the claimant worked his regular schedule during the remainder of 1993, 1994, and 1995. The claimant testified that he underwent treatment at the respondent employer’s medical center. However, the trial commissioner found that the employer’s medical center records covering the period from November 24, 1993 through June 22, 1994 indicate that the claimant was seen on eighteen occasions but show no history of the claimant undergoing any treatment for back complaints.

The trial commissioner took administrative notice that a Finding and Dismissal was issued on March 26, 1997 [aff’d, Freeman v. UTC/Sikorsky Aircraft, 3568 CRB-4-97-4 (June 3, 1998)] in which the trial commissioner concluded that the claimant failed to meet his burden of proof that he sustained an injury to his back at work on October 23, 1995. The claimant was first seen by Dr. Mastroianni on April 23, 1996, and underwent an MRI on April 24, 1996 which revealed a large disc herniation. The claimant gave Dr. Mastroianni a history of having injured his back at work on October 24, 1995. According to Dr. Mastroianni, the intake form completed by the claimant on April 23, 1996 indicated that his symptoms started in October 1995. Dr. Mastroianni testified that he could not say for sure whether the claimed injury of September 29, 1993 was the cause of the disc herniation. The trial commissioner noted that after the claimant saw Dr. Mastroianni in May of 1996, he did not return to the doctor until shortly after his claim was dismissed in the March 26, 1997 Finding and Dismissal.

Pursuant to the respondents’ request, Dr. Druckemiller reviewed the claimant’s records, including the chiropractic and medical reports, the MRI studies, and the deposition transcript of Dr. Mastroianni. Dr. Druckemiller testified that individuals with small spinal canals, such as the claimant, are exquisitely symptomatic with disc herniations. He opined that if the claimant had sustained a disc herniation in 1993, it would have taken two to four months to get over the leg pain, and noted that there was nothing in the medical records to support the claimant’s alleged pain between 1993 and 1995. Dr. Druckemiller opined that the claimant’s disc herniation occurred in 1995 or 1996, and did not occur in 1993.

In support of his appeal, the claimant contends that the trial commissioner erred by relying upon Dr. Druckemiller’s opinion because he alleges that Dr. Druckemiller misinterpreted the claimant’s medical records by not finding that the claimant had complained of leg pain commencing in 1993. The claimant further argues that the claimant’s uncontradicted testimony was that he did experience pain in his legs during this period. We find no error.

In the instant case, the trial commissioner specifically addressed the issue of credibility, and found the claimant’s testimony was not credible, including his testimony regarding the condition of his back and his claimed disability between October 1993 and 1995. The trial commissioner “is the sole arbiter of the weight of the evidence and the credibility of witnesses in workers’ compensation cases”; Keenan v. Union Camp Corp., 49 Conn. App. 280, 286 (1998)); and thus it was within his discretion to find that the claimant’s testimony was not credible. In his appeal, the claimant is essentially seeking to retry the facts of this case, which this board may not do. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999).

A claimant has the burden of proving to the satisfaction of the trial commissioner that he has sustained a compensable injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Freeman v. UTC/Sikorsky Aircraft, 3568 CRB-4-97-4 (June 3, 1998). “As the trier of fact, the commissioner is the sole individual vested with the authority to decide which, if any, evidence is probative, including the testimony of both lay and expert witnesses.” Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000), citing Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 627 (1998), aff’d, 248 Conn. 379 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). “Even where an oral statement or a doctor’s report is not expressly contradicted, the trier may still draw inferences regarding its reliability from the demeanor of the witness, the overall consistency of the testimony, the presence or absence of corroborative empirical evidence, the nature and circumstances of the alleged injury, or any other element of the case that the factfinder deems significant. On review, this board does not have the power to second-guess a trial commissioner’s decision that a particular version of the facts is or is not credible.” Gibbons, supra, citing Freeman, supra; Perry v. Commercial Interior Systems, 3571 CRB-7-97-4 (June 3, 1998).

Here, 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 testimony of Dr. Druckemiller, and to conclude that the claimant did not sustain his burden of proof regarding his contention that his herniated disc was related to his 1993 back injury. This conclusion was based upon the trial commissioner’s assessment of the evidence and is fully supported by the record. Moreover, we find no error in the trial commissioner’s denial of the claimant’s Motion to Correct, as the claimant’s proposed corrections essentially involve the credibility of the claimant’s testimony and the weight of the medical evidence presented. See Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (Jan. 20, 2000).