Sprague v. Lindon Tree Service, Inc.

The claimant was represented by James K. Kelley, Esq., 33 Broad Street, Danielson, CT 06239.

The respondents were represented by Dominick Statile, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the November 5, 2001 Finding and Award of the Commissioner acting for the Second District was heard May 31, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the November 5, 2001 Finding and Award of the Commissioner acting for the Second District. They contend on appeal that the trier erred by finding that the claimant sustained a compensable injury during the course of his employment with the respondent Lindon Tree Service, Inc. We find no error on review, and affirm the trial commissioner’s decision.

The trier found the following relevant facts. The claimant, a licensed forest practitioner, began working for the respondent tree-clearing service in January 1999 at the age of 19. He operated a 15-20 pound chainsaw between 40 and 45 hours per week as part of his woodcutting duties. He also stacked lengths of wood that could weigh up to 100 lbs. On September 8, 1999, he was working with the owner of the tree service, William Bibeault, Sr., and performing the duties of both a bucket operator and a ground man. Eight trees were scheduled to be cut down that day. After dropping the trees, the claimant would partially cut their trunks with a chainsaw in order to make the wood light enough to drag, and then he would chip all the brush. As it was raining steadily that day, everything was soaked with water and consequently heavier than normal. By the end of the work day, the claimant’s back had begun to hurt. He assumed that he had pulled a muscle, and did not bother to report it to Bibeault.

The claimant stayed at home that evening to rest, but his pain worsened. The next morning, he discovered that his lower back, buttocks and the top of his leg hurt very badly, in the manner of a stinging, tearing pain. Despite this pain, he went to work. He reported his back injury to his employer either that day or the following day, indicating that he would seek medical attention if the pain had not subsided by the end of the week. As it did not, he paid a visit to his family physician, Dr. Shooks, on September 10, 1999. Dr. Shooks recommended that an MRI be performed, which disclosed a ruptured L5-S1 disc. He referred the claimant to a local orthopedist, Dr. Jacobson, who first saw the claimant on October 6, 1999, and suspected that the rupture was work-related. The trier found that he had never suffered from prior back problems aside from an unrelated stiffening that he had periodically felt in the upper-center region of his back.

The claimant continued in his job, even though his back condition progressively worsened through December 20, 1999. At that point, he stopped working for several weeks, and then returned in a light duty capacity for two more months before leaving again in March. Dr. Jacobson referred the claimant to Dr. Rossi, who examined him on April 3, 2000, and identified “classic S1 radiculopathy” secondary to the L5-S1 disc rupture. Dr. Rossi recommended that surgery be performed. Though the claimant stayed out of work until August, when he began working for his father, he did not attempt to get approval for surgery. The claimant testified in August 2000 that his back condition had improved, and was merely seeking payment for his already-incurred medical expenses. The trier found him to be a “credible witness with a stoic attitude toward his health problems,” and concluded that his injury was compensable. The respondents have appealed that decision to this board, along with the denial of their Motion to Correct.

The respondents maintain on appeal that there was insufficient evidence upon which to find that the claimant’s back problems were caused by an injury that arose out of and in the course of the claimant’s employment. Though the claimant was the only person who testified, and the respondents offered no evidence to show that his herniated disc was suffered in some other manner, they contend that the medical reports of Dr. Shooks, Dr. Jacobson and Dr. Krompinger rely too heavily on the “self-serving” testimony of the claimant as a foundation for linking the claimant’s symptoms with his employment.

We remind the respondents of our standard of review in this matter. Our role is not to retry this case by weighing the evidence anew, and by recording our own measurements of its relative merit. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Rather, we recognize that the trier of fact was charged with the duty of resolving all issues that concerned the credibility of the evidence, including both the medical reports and the testimony of the claimant. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Phaiah, supra. This factfinding discretion entitled the trier to credit all, some or none of any given doctor’s testimony, and allowed her to accept the testimony of the witness even if his remarks contained assertions that tended to further his own interest. Tartaglino, supra; Irizarry v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002); Canevari v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001). It also permitted her to omit facts from her decision that would not affect its outcome given the inferences she drew regarding the credibility of the evidence. Admin. Reg. § 31-301-3. On review, this board may go no further than to determine whether there is evidence in the record to support the trier’s findings, and whether she might have omitted from her decision material facts that are truly admitted and undisputed. Phaiah, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001).

The burden in this case was on the claimant, of course, to offer evidence sufficient to establish a causal link between his employment with Lindon Tree Service and his back injury. Canevari, supra; Warren, supra. In some cases, the nature of an injury may be such that causation may be proven without extensive medical testimony, simply by drawing on the knowledge available through ordinary human experience. Garofola v. Yale & Towne Mfg. Co., 131 Conn. 572 (1945); Garofalo v. Jarvis Products Corp., 4249 CRB-8-00-6 (Sept. 12, 2001). At other times, the theory of injury may be complex, or the claimant may have a history of a debilitating condition or specific trauma to the body part at issue. In those situations, the question of whether that condition stems from an injury that arose out of and in the course of the claimant’s employment cannot be answered in the affirmative without a physician’s opinion that confirms such a causal connection within a reasonable degree of medical probability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151-52 (1972); Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449 (2001).

Here, the respondents contend that the etiology of the claimant’s condition is unclear, both with regard to the exact mechanism of his alleged workplace injury and in recognition of the claimant’s representation that he had been experiencing recurring tightness in his back for several years (predating his graduation from high school). As noted, the trier was entitled to place whatever weight she saw fit on the claimant’s testimony. The essence of his story was that, toward the end of a hard day at work on September 8, 1999, his back started to hurt. It caused him slight discomfort that evening, and hurt very badly when he woke up the next morning, with pain extending through his back and buttocks and into his right leg. He assumed that he had pulled a muscle, and decided to report for work anyway. He believed that he mentioned “screw[ing] up his back” to Bibeault either the next day or the day after that. August 8, 2001 Transcript, p. 50. However, his back did not begin to bother him while working until a few months later, which allowed him to continue in his employment during the interim. Id., p. 67. The claimant distinguished these symptoms from the “tightness” he had periodically felt in his back since his high-school years, which was merely an upper-back stiffness that he would relieve by stretching. Id., p. 84.

When the trier accepted this version of the facts as credible, the question then became whether the medical evidence adequately supported the claimant’s description of the circumstances that surrounded his injury. It is a matter of common understanding that the lifting of heavy objects may cause a lower back injury, including a herniated disc. Garofola, supra; Canevari, supra; Perrelli v. Yale University, 4350 CRB-4-01-1 (Dec. 20, 2001). Of the various medical reports in the record, none suggests that the claimant’s description of the events preceding the onset of his severe pain is somehow inconsistent with his observable symptoms. For example, the November 6, 1999 office note of Dr. Jacobson states, “I think the patient has a distinct ruptured disc. Given his history, I suspect this is in fact work-related.” Claimant’s Exhibit B. Dr. Jacobson also opined in his deposition that, within a reasonable degree of medical probability, this herniation was caused by the claimant’s heavy day of hauling brush. Respondents’ Exhibit 1.

Also, Dr. Rossi described the claimant’s condition as a “classic S1 radiculopathy secondary to his disc rupture,” and seemed to have no problem attributing it to the onset of low back pain on September 8, 1999, “which by the next day became quite severe and radiated down the right leg in a rather typical S1 distribution.” Claimant’s Exhibit C. Dr. Krompinger’s medical evaluation of April 25, 2000 concludes, “in the absence of any other specific medical information especially the need for prior medical intervention or prior documented medical history I believe the [claimant’s] L5-S1 herniation came about from his employment and activity in September of 1999.” Claimant’s Exhibit F. At his deposition, he stated that, despite the respondents’ expressed misgivings, he still thought there was a high probability that this disc herniation was work-related, as such an injury was consistent with the claimant’s work activities. “In terms of deciding whether his spoken history is credible, I rely on the things that you just mentioned; the reports and the chronology, does it all make sense? Does it fit a timetable? And I think it does, so, yes.” Respondents’ Exhibit 2, p. 30.

Contrary to the respondents’ assertion, the claimant was not required to recall a precise moment of injury during the course of the day on September 8, 1999, in order to establish a personal injury under § 31-275(16)(A). Rather, a certain degree of deduction in identifying the mechanism of an injury is acceptable where the circumstances appear to warrant it, such as in a situation where back pain follows the morning after one has been engaged in laborious physical work. Our Supreme Court has stated that the statute defining personal injury “requires proof of an accidental injury which can be definitely located both as to time and place. It does not require that the time be fixed by a stopwatch or the place by a mathematical point.” Stier v. Derby, 119 Conn. 44, 49-50 (1934). Thus, injuries such as frostbite and sunstroke have been held compensable when incurred in the course of employment, even though the exact moment of injury could not be determined. Id., 50; Troske v. Wolcott View Manor, 13 Conn. Workers’ Comp. Rev. Op. 323, 1687 CRB-5-93-4 (April 26, 1995).

Ultimately, reliance on a patient’s history is a common ingredient in diagnosing the cause of an injury, and all other possibilities regarding causation need not be conclusively ruled out in order for a claimant to establish the occurrence of a compensable incident within a reasonable degree of medical probability. Perrelli, supra. Where the trier accepts a claimant’s recounting of the circumstances of an injury, that account may become the basis of a finding of compensability. See, e.g., Weiss v. Chesebrough-Ponds USA Co., 51 Conn. App. 106, 111 (1998); Bell v. McCarthy, 3216 CRB-6-95-11 (April 10, 1997); see also, George v. Ericson, 250 Conn. 312, 321-25 (1999)(in civil trial, non-treating physician may testify to his opinion even if it is based on statements made by patient during preparation for litigation). Conversely, where a claimant’s history is found not to be reliable, a trier may reasonably disregard medical opinions concerning causation that are heavily dependent on that history, e.g., where the alleged injury involves the moving of a heavy object. Palandro v. Bernie’s Audio-Video TV & Appliances, 3876 CRB-3-98-8 (Sept. 2, 1999). Here, the trier accepted the claimant’s testimony, which led her to accept the opinions of the doctors who had relied on the medical history that he provided. On review, we find no error in her doing so.

The trial commissioner’s decision is accordingly affirmed. Insofar as any benefits due the claimant may have remained unpaid pending the outcome of this appeal, interest is awarded pursuant to § 31-301c(b).