Distassio v. H.P. Hood, Incorporated

The claimant was represented Albert Desrosiers, Esq., Cousins, Desrosiers & Morizio, P.C., 2563 Main Street, Stratford, CT 06615.

The respondents were represented by Brian Prindle, Esq., Law Offices of Brian E. Prindle, 72 Bissell Street, Manchester, CT 06040.

This Petition for Review from the December 30, 2005 Finding and Award of the Commissioner acting for the Fourth District was heard July 14, 2006 before a Compensation Review Board panel consisting of the Commissioner Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents appeal from the December 30, 2005 Finding and Award of the Commissioner acting for the Fourth District. In that Finding and Award the commissioner found the claimant’s right hip injury was compensable.

The pertinent facts in this matter are as follows. On October 12, 1998 the claimant fell while in the course of unloading milk from his employer’s truck. Proceedings were held before former Commissioner John Arcudi who determined in his November 19, 2002 Finding and Award that claimant’s left knee injury resulted from the October 12, 1998 fall and was therefore compensable. However, in the Compensation Review Board’s review of Commissioner Arcudi’s Finding and Award, the matter was remanded as Commissioner Arcudi’s decision failed to address the compensability of the claimant’s right hip injury. See Distassio v. HP Hood, Inc., 4592 CRB-4-02-11 (May 5, 2004).

Thereafter proceedings were held before Commissioner Michelle Truglia. In addition to considering the evidence presented at a formal hearing over which she presided, the commissioner took administrative notice of all documents previously filed. The trial commissioner was presented with conflicting medical opinions on the issue of whether the claimant’s right hip injury and subsequent surgery was causally related to his compensable fall.

In support of his claim, the claimant offered the opinion of his treating physician, Dr. Patrick Carolan. Some three years prior to his fall, the claimant had undergone a right hip replacement. Following that surgery and prior to his fall, the claimant began to develop osteolysis in the right hip. Some time subsequent to his fall at work, the claimant began to experience pain in his right hip. Dr. Carolan opined that it was medically probable the claimant’s fall resulted in a loosening of the right hip prosthesis. Dr. Carolan testified the normal life expectancy of a hip prosthesis is 20 years. However, in the claimant’s case the fall at work in combination with the osteolytic process was a substantial factor causing the need for the November 1999 hip revision surgery.

The respondents called Dr. Stuart C. Belkin as their expert witness. Dr. Belkin also testified that a hip replacement is expected to last 20 years. However, Dr. Belkin testified that the fall did loosen the prosthesis but the prosthesis was already loosened at the time of the fall and “that the impact of the fall might have exacerbated the condition caused by the loose prosthesis.” Finding, ¶ 21.

On appeal the respondents raise the issue of whether the trial commissioner erred in concluding that the claimant’s 1998 fall at work was a substantial factor in the causal chain leading to the claimant’s November 1999 hip surgery. The respondents’ first argument is that the trial commissioner erred in crediting the opinion of Dr. Carolan as his opinion was predicated on facts not in evidence. Specifically, the respondents argue that the trial commissioner predicated his opinion on the basis that the claimant’s hip injury was the result of a “rotational” injury and there was no evidence supporting an occurrence of such an injury. See Appellant’s Brief p. 5. We disagree and conclude there was ample evidence in the record to support the opinion reached by Dr. Carolan.

Dr. Carolan testified that the claimant told him that in the course of his fall that he fell and twisted. Deposition of Dr. Carolan p. 18. Respondents’ Exhibit 2 reflects the claimant’s statement that he “slipped forward to his left and fell.” The claimant also testified that when he fell a crate of milk also fell and struck him on his right hip. See October 31, 2001 Transcript, p. 9. We therefore find no merit in the respondents’ assertions that the factual record does not support Dr. Carolan’s opinion.

In addition the respondents argue that the trial commissioner erred in failing to credit Dr. Belkin’s opinion on the basis that his opinion made no reference to the “substantial factor” test. Again we are not persuaded that the trial commissioner’s interpretation of Dr. Belkin’s testimony was unreasonable or impermissible. It appears to this panel that the trial commissioner merely attached greater weight to the expert’s opinion that she found more credible. In Finding ¶ 21 the trial commissioner noted, “Dr. Belkin’s opinion, with a reasonable degree of probability, is that the October 12, 1998 fall did not cause the loosening of the prosthesis but that the prosthesis was already loosened and that the impact of the fall might have exacerbated the condition caused by the loose prosthesis.” In Finding ¶ 22 the commissioner found, “Dr. Belkin agreed with the claimant’s treating physician that, under normal circumstances, the life expectancy of the claimant’s prosthesis would have been about 20 years.”

We note that as part of the respondents appeal they filed a Motion to Correct. The Motion to Correct sought to correct Finding ¶ 21. It is their contention that the trier’s finding in ¶ 21 is erroneous. Assuming for the sake of argument that the trier’s finding in ¶ 21 may have imperfectly summarized the opinion of respondents’ expert witness the deletion of the finding would not compel a different legal outcome. It is abundantly clear that the trial commissioner considered the evidence and opinions of both parties’ experts. The conclusion reached was based on the weight and credibility she assigned to the opinions proffered. Ryker v. Bethany, 97 Conn. App. 304 (2006); Tartaglino v. Dept. of Correction, 55 Conn. App. 190 (1999). Conclusions drawn from such assessments shall not be disturbed unless without evidence, contrary to law or based on unreasonable of impermissible inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).