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CASE NO. 3320 CRB-1-96-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 29, 2002
INSURANCE COMPANY OF NORTH AMERICA
The claimant appeared on her own behalf.
The respondents were represented by Diane Duhamel, Esq., Duhamel & Schoolcraft, 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.
This Petition for Review from the March 28, 1996 Finding and Dismissal of the Commissioner for the First District, was heard August 24, 2001 before a Compensation Review Board Panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the March 28, 1996 Finding and Dismissal of the trial commissioner acting for the First District. In that decision, the trial commissioner found that the claimant sustained a compensable injury to her back due to a fall at work on December 23, 1989, and that a voluntary agreement had been approved which listed the claimant’s injury as lumbar strain. The trial commissioner further found that the claimant failed to meet her burden of proof that other alleged medical conditions were caused by the compensable injury.
A brief procedural history is in order. The claimant’s original appeal from the March 28, 1996 Finding and Dismissal was heard by the board on January 19, 1997 and the board issued a decision March 12, 1997- Bryan v. Sheraton-Hartford Hotel, 3320 CRB-1-96-4 (March 12, 1997). In that decision, the board remanded the matter to the trier so that the trier could consider a medical report issued by Dr. Selden on April 12, 1996 indicating that her left shoulder condition was compensable. On remand, the trier allowed only the April 12, 1996 medical report of Dr. Selden, but refused to consider a subsequent 1997 report in which Dr. Selden recanted the April 12, 1996 report. On appeal, this board affirmed the trial commissioner’s decision in Bryan v. Sheraton-Hartford Hotel, 3730 CRB-1-97-11 (May 7, 1999), rev’d, 62 Conn. App. 733 (2001). However, the Appellate Court ruled that it was error for the trier to limit his review to the April 12, 1996 report of Dr. Selden without considering Dr. Selden’s subsequent 1997 report which stated that the April 12, 1996 report was incorrect. Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733 (2001).
Instead of remanding the matter, the Appellate Court determined that the effect of the April 12, 1996 report allowed for only one conclusion. Id., 742. The court explained that the board had remanded the matter to the trier to consider the April 12, 1996 report “as new evidence that might change the commissioner’s March 28, 1996 finding that the plaintiff’s shoulder injury was unrelated to the December 23, 1989 work-related injury.” Id., 742-43. The court explained that if the trier had considered Dr. Selden’s 1997 report which recanted his April 12, 1996 report, the trier “would have had no choice but to reaffirm his March 28, 1996 finding that the shoulder injury was unrelated to the work injury.” Id., 743. The court thus concluded that the March 28, 1996 finding should be reinstated. The court further explained that this board should resume proceedings on the claimant’s appeal (case number 3320 CRB-1-96-4) from the March 28, 1996 finding.
Accordingly, we will now review the claimant’s appeal from the March 28, 1996 Finding and Dismissal. At issue before the trial commissioner was the claimant’s contention that she injured her left shoulder in the compensable fall of December 23, 1989, and that the fall caused her to sustain OB/GYN and other internal injuries including the loss of her pregnancy and subsequent pregnancies, which the respondents denied. In the March 28, 1996 Finding and Dismissal, the trial commissioner found the following relevant facts. The claimant sustained a compensable injury to her back due to a fall at work on December 23, 1989, and a voluntary agreement was approved which listed the claimant’s injury as lumbar strain. The claimant was two months pregnant at the time of the December 23, 1989 fall. Ultimately, the claimant lost her pregnancy and a long course of events involving OB/GYN problems ensued.
The trial commissioner further found that the claimant had been involved in an automobile accident in March of 1989 which caused her to sustain a fractured sternum and permanent partial disability. The claimant was again in an automobile accident in September of 1991 in which she injured her back, neck, stomach and shoulder. The claimant contended that she has been either partially or totally disabled due to a combination of her acknowledged back injury and her alleged disabilities allegedly caused by her OB/GYN and other internal problems. See Findings, ¶ 9 & 10.
The trial commissioner ordered a trial commissioner’s examination, which was performed by Dr. Rodis, Associate Professor of OB/GYN at the University of Connecticut Health Center. Dr. Rodis issued a report (Commissioner’s Exh. 1) and testified at the formal hearing. Dr. Rodis concluded that the claimant’s pregnancy losses were not related to the December 23, 1989 injury. He stated that the claimant’s pregnancy loss prior to the fall was remarkably similar to those losses which occurred after the fall. Moreover, Dr. Rodis did not connect the claimant’s gastrointestinal complaints to the 1989 injury, rather, he attributed her gastrointestinal complaints to abdominal adhesions developed as a result of her last pregnancy loss.
The trial commissioner accepted Dr. Rodis’ opinion as persuasive, and concluded that the claimant’s OB/GYN, abdominal, gastrointestinal problems and bladder problems were not causally related to the claimant’s 1989 compensable injury. Additionally, the trial commissioner found that the claimant did not meet her burden of proof regarding § 31-308a benefits. The trial commissioner determined that the claimant presented “insufficient evidence of a diminished work capacity due to her accepted injuries of December 23, 1989.” Findings, ¶ 24. Additionally, the trial commissioner found that the claimant had declined work offered to her by the respondent employer.
In support of her appeal, the claimant contends1 that she suffered from grief and depression which was causally related to the compensable 1989 fall, which would support her claim for § 31-308a benefits. (Claimant’s Amended Brief dated Dec. 17, 1996, p. 10-11). In support of this claim, the claimant cites the medical report of Dr. Rodis. Id. Additionally, the claimant reiterates her contention made during the formal hearing that her pregnancy losses were caused by the 1989 fall.
We have repeatedly held that 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); Goodrow v. W.J. Barney Corporation, 11 Conn. Workers’ Comp. Rev. Op. 207, 1315 CRD-2-91-9 (Sept. 27, 1993). It is the trial commissioner’s duty and prerogative to weigh the credibility of the medical evidence and the testimony of the witnesses, including the claimant, and draw inferences based upon these 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).
The trial commissioner possesses the exclusive discretion to evaluate the credibility of the evidence, including both the testimony of lay witnesses and the opinions of medical professionals. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999), Pallotto, supra. In order to prevail, the claimant must offer evidence sufficient to persuade the trier of fact that her injuries and/or disability arose out of and in the course of her employment.
We do not agree with the claimant’s argument that the medical report of Dr. Rodis required the trial commissioner to find that the claimant sustained emotional distress as a result of the 1989 fall which entitled her to § 31-308a benefits. Nor do we agree with the claimant’s argument that it is “undisputed” that the claimant suffered emotional stress “syndrome” as a result of the 1989 fall. (Claimant’s June 20, 2001 Brief, p. 3). We can find no medical evidence in the record which indicates that the claimant’s alleged emotional distress was caused by the compensable 1989 fall rather than from other factors, such as the pregnancy losses.
We conclude that the trial commissioner’s decision is fully supported by the record, as Dr. Rodis repeatedly testified regarding his opinion that the claimant’s pregnancy losses were not caused by the 1989 injury. June 21, 1995 Transcript, p. 57. Furthermore, Dr. Rodis opined that the claimant’s gastrointestinal symptoms were related to her pregnancy losses, but were not related to the 1989 injury. Id., 59-61. As the trial commissioner’s decision is fully supported by the record, it may not be disturbed.
Finally, regarding the claimant’s request for § 31-308a benefits, we have repeatedly explained that § 31-308a gives a commissioner discretion to award benefits based on such factors as the claimant’s age, training, marketability, education, and the severity of his injury. Degiacomo v. Arwood Corp., 3486 CRB-1-96-12 (Jan. 21, 1998). Richmond v. General Dynamics Corp., 13 Conn. Workers’ Comp. Rev. Op. 345, 346, 1825 CRB-2-93-8 (April 27, 1995). Here, the trial commissioner found that the claimant presented insufficient evidence of a diminished work capacity due to her accepted injuries of December 23, 1989 and found that the claimant had been offered work by the respondent employer which she “declined due to various maladies.” Findings, ¶ 24. We find no error in the trial commissioner’s denial of § 31-308a benefits.
The trial commissioner’s decision is affirmed.
Commissioners George A. Waldron and Ernie R. Walker concur.
1 The claimant also contends that Dr. Selden’s medical reports indicate that her left shoulder condition was caused by the 1989 fall. However, we need not address the left shoulder issue as it has already been determined by the Appellate Court that Dr. Selden recanted his opinion regarding causation of the left shoulder which left only one conclusion- “that the shoulder injury was unrelated to the work injury.” Bryan, supra, 62 Conn. App. 743. BACK TO TEXT
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