Monaco v. School Transportation Services

The respondents were represented by Theodore W. Heiser, Esq., Gibson & Behman P.C., 71 Bradley Road, Suite 11, Madison, CT 06443.

This Petition for Review from the June 26, 2002 Finding and Award of the Commissioner acting for the Third District was heard January 24, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy A. Brouillet and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents appeal from the June 26, 2002 Finding and Award of the Commissioner acting for the Third District. In that Finding and Award the trial commissioner found that the claimant’s left knee injury arose out of and in the course of her employment. The pertinent facts are as follows.

In December 2001 the claimant was employed as a school bus driver. On or about December 21, 2001 the claimant was walking along the parking area paved with large loose stones, fell and injured her left knee. The claimant did not report the injury on that date. The day that the injury occurred was the last day before the ten day Christmas school recess period. On the evening of December 21, 2001 the claimant called her physician’s office and was told to elevate her leg and place ice on it. On December 27, 2001 the claimant was examined by a physician’s assistant at the office of Dr. Richard S. Rhee, M.D. The claimant was referred to the Yale Orthopedic Group.

In early January 2002 the claimant verbally reported her injury and was given the name of Dr. John Connolly of St. Raphael’s Occupational Clinic1 as a possible medical provider. On January 16, 2002 the claimant was examined by Dr. Connolly and was again referred to the Yale Orthopedic Group. However, the claimant scheduled an examination with Dr. Patrick Ruwe, M.D. In the history claimant gave to Dr. Ruwe she mistakenly gave the date of her injury as December 23, 2001. Ultimately, Dr. Ruwe determined that the claimant suffered a tear to the anterior cruciate ligament in the left knee and required surgery.

Upon considering the evidence and the testimony given, the trial commissioner concluded that the claimant’s left knee injury was compensable and so stated in his June 26, 2002 Finding and Award. The respondents filed this appeal and ultimately present the issue of whether the trial commissioner erred in concluding that the claimant’s knee injury was compensable.

In its appeal the appellants contend that the claimant’s testimony was not credible and thus the trier’s findings and conclusion are not supported by legally competent evidence. In their attack on the claimant’s credibility the appellants point to the claimant’s variance as to the date of injury. They argue that the claimant attempted to explain the discrepancy by stating that she read a 1999 calendar when she was trying to figure out the date that she fell in the parking lot. The trial commissioner appears to have accepted the claimant’s explanation or at least inferred that an error as to the date of injury which only differed by two days was not substantial enough to impugn the remainder of her testimony. The claimant contended that she fell in the parking lot on loose stones, provided evidence of the loose stones, Claimant’s Exhibit H, described a fall earlier than the claimed date of injury which was followed by a more damaging fall on or about December 21, 2001.

The weight and credibility to be assigned to the claimant’s testimony is a matter within the province of the trial commissioner. On appeal we do not engage in de novo review. The trial commissioner listened to the claimant’s testimony, the respondents’ cross examination of that testimony and concluded as he did. We cannot say that his determination was an improper exercise of his discretion. Vazquez v. Unifirst Corp., 4498 CRB-4-02-3 (March 7, 2003); Dzialo v. B&B Industries, 4509 CRB-2-02-3 (March 5, 2003). While the claimant may be a weak historian as to specific dates and times, the fact of the matter is she claimed she suffered a fall on loose rocks in the parking lot of the employer. The claimant says her knee began to swell and she had pain in it. She testified and offered evidence that she sought medical help for her knee condition within a week of whichever date one believes was the date of her fall. It does not defy the reasonable mind that the events occurred as the claimant described no matter which particular day they occurred in the week before Christmas 2001.

We therefore affirm the June 26, 2002 Finding and Award of the Commissioner acting for the Third District.

Commissioner Howard H. Belkin concurs.2

1 It appears that the reference to Dr. John Connolly is a scrivener’s error and the reference should be to Dr. Joseph P. Connolly, M.D. See Claimant’s Exhibit C. BACK TO TEXT

2 As noted in the heading of this opinion, this matter was originally heard on January 24, 2003, by a three-commissioner panel of the Compensation Review Board that included Nancy A. Brouillet, whose term of service has since expired. Former Commissioner Brouillet did not participate in the drafting or review of this written opinion, and has had no involvement in the issuance of this decision. BACK TO TEXT