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CASE NO. 5052 CRB-1-06-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 22, 2007
COCA COLA BOTTLING COMPANY
CONSTITUTION STATE SERVICE
The claimant was represented by Jan P. van der Werff, Esq., Law Offices of Jan P. van der Werff, One Barnard Lane, Suite 202, Bloomfield, CT 06002.
The respondents were represented by Robert Dombrowski, Esq., Morrison Mahoney LLP, One Constitution Plaza, Hartford, CT 06103.
This Petition for Review from the January 27, 2006 Finding and Award of the Commissioner acting for the First District was heard August 25, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. The instant appeal herein concerns a Finding and Award granted to the claimant, who represented he suffered compensable knee injuries while in the employ of the respondents. Respondents argue that the claimant failed to present sufficient medical evidence to substantiate his award. Our review of the record demonstrates sufficient evidence was provided to the trial commissioner, and it was a matter left to his discretion as to whether to issue an award based on that evidence. Since we do not retry the facts, we dismiss this appeal.
Following a formal hearing the trial commissioner found the following facts. The claimant commenced working for the respondents as a forklift operator in 1998. Findings, ¶ 1. The trial commissioner found the claimant had no medical symptoms relative to his knees as of the date of hire. Findings, ¶ 2. The claimant’s job required him to load over 200 cases of soda per hour. Findings, ¶¶ 3-7. He frequently worked overtime. Findings, ¶ 8. On July 15, 2004 the claimant suffered an injury to his right knee. Findings, ¶ 9. He then began treatment under Dr. Robert Carangelo. On August 3, 2004 Dr. Carangelo performed an arthroscopy on the claimant’s knee. Findings, ¶¶ 10-12. During September and October 2004 Dr. Carangelo examined the claimant’s right knee post operation, as well as the claimant’s left knee. Findings, ¶¶ 13-17. Dr. Carangelo determined that the claimant’s job was a substantial factor in the degenerative arthritis in both knees. Findings, ¶ 18. Following a December 2004 examination Dr. Carangelo discussed a variety of treatment options with the claimant, and recommended arthoplasty. Findings, ¶¶ 19-21.
On January 4, 2005 Dr. Steven Selden performed a respondents’ examination on the claimant. He concurred that the claimant has arthritis in his knees, but believed the claimant’s excessive weight was the most substantial factor causing the ailment. He did not believe the claimant’s work was a substantial factor. Findings, ¶¶ 22-28. Dr. Carangelo reiterated his opinion that the claimant’s employment did contribute to the arthritis in a January 17, 2005 letter to counsel. Findings, ¶ 29. The claimant had bilateral knee replacements performed on February 7, 2005 by Dr. Carangelo and another orthopedic surgeon, Dr. Froeh. Findings, ¶ 30.
On January 27, 2006 the trial commissioner issued a Finding and Award finding that Dr. Carangelo’s opinions as to causation and compensability were credible and persuasive and that Dr. Selden’s opinions were not persuasive. Findings, ¶¶ A-B. He found that claimant’s work was a substantial factor in causing the need for knee replacements, that the work injuries were compensable and the treatment of Dr. Carangelo and Dr. Froeh were reasonable and necessary. Findings, ¶¶ D, E and F.
The respondents filed a Motion to Correct seeking to replace the commissioner’s reliance on Dr. Carangelo’s opinions with those of Dr. Selden. Following the trial commissioner’s denial of this motion, the respondents pursued this appeal.
A review of the respondents’ appeal indicates that in virtually all respects it seeks to obtain a rehearing of the facts. Accordingly, we are unable to provide the relief sought by the respondents. Fair v. People’s Savings Bank, 207 Conn. 535, 539-542 (1988).
Dealing with the specific issues raised in the appeal we are satisfied that the trial commissioner’s decision was based on sound evidence and legal precedent. The respondents argue the trial commissioner should not have found a specific injury occurred to the claimant’s right knee in July 2004; should have given the opinions of Dr. Selden greater weight than that of Dr. Carangelo, and should have attributed the knee ailments to preexisting conditions. We are not persuaded on any of these issues.
The gravamen of the respondents’ argument is the trial commissioner “relied on certain facts while omitting others.” Respondents’ Brief, p. 6. This is akin to the argument we rejected in Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB -7-05-3 (March 1, 2006) that the volume of evidence presented was paramount. “All judgments of evidentiary credibility are left solely to the trial commissioner, who is charged with deciding which of the documentary exhibits and witnesses are the most believable.” Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).” Prescott v. Community Health Center, Inc., 4426 CRB 8-01-8 (August 23, 2002). In regards to the issue of whether the claimant suffered a knee injury on or about July 15, 2004; it is documented in the medical reports of his treating physician. July 26, 2004 report of Dr. Carangelo; Claimant’s Exhibit 3. The respondents argue this injury was self-limiting. We believe this issue is one of those “prototypical questions of fact” which limits the scrutiny we may apply on review. Prescott, supra.
The treating physician opined on a number of occasions that the claimant’s employment was a “substantial factor” in his current knee ailments. See Dr. Carangelo’s October 13, 2004 report. Claimant’s Exhibit 3. “[T]he test for determining whether particular conduct is a proximate cause of an injury [is] whether it was a substantial factor in producing the result.” Dixon v. United Illuminating Co., 57 Conn. App. 51, 60 (2000). In making this determination, a trial commissioner must rely on expert testimony on this issue. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 152 (1972). Upon review, we believe Dr. Carangelo’s opinions are competent evidence and support the trial commissioner’s findings.
Therefore, the issue of Dr. Selden’s arguably more substantial resume is not the significant issue the respondents have asserted. The trial commissioner considered the testimony of Dr. Selden and found it less persuasive than that of the treating physician. The critical question is whether Dr. Carangelo offered competent evidence in this proceeding. Having concluded the treating physician offered competent evidence, our inquiry ceases. “If on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier’s discretion to credit that opinion above a conflicting diagnosis.” Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003). “We must defer to the factual findings of the trial commissioner in such ‘dueling expert’ cases.” (Internal citations omitted) Dellacamera v.Waterbury, 4966 CRB 5-05-6 (June 29, 2006) n.1.1
Dr. Selden’s primary conclusion was that the claimant’s employment did not cause his knee injuries. As noted, the trial commissioner was presented with competent evidence to the contrary which he credited. To the extent the respondents attempted to link these injuries to the claimant’s pre-employment condition we note 1) evidence was provided his knees were “normal” shortly after he commenced employment i.e., December 10, 1998 report of Dr. Buffo, Claimant’s Exhibit 2; and 2) the tenet that one “takes the employee in the state of health in which it finds the employee.” Gartrell v. Dept. of Correction, 259 Conn. 29, 40 (2002).
“Where no pre-existing impairment due to occupational disease is present; the employer as in the law of torts takes the victim as it finds him and pays for the entire resultant disability.” Deschenes v. Transco, Inc., 4943 CRB-8-05-5 (May 22, 2006). The trial commissioner credited the treating physician on the issue of causation. Consequently, our case law supports his finding that the employer is responsible for the claimant’s knee condition.2
As a result, we sustain the commissioner’s Finding and Award and dismiss the appeal. To the extent interest may be due pursuant to § 31-301c(b). It is ordered herein.
Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this opinion.
1 To paraphrase our holding in Arnott, supra, the paramount concern for the trial commissioner is not the weight of an expert’s resume; it is the weight of the testimony he or she submits at the hearing. The appellants have not offered appellate authority for the position a trial commissioner must give greater weight to a more experienced physician. In this case, we find it was a matter of discretion to rely on Dr. Carangelo. BACK TO TEXT
2 Respondents claim it was error for the trial commissioner to reject its Motion to Correct. Since the Motion to Correct essentially sought to interpose the respondents’ conclusions as to the facts presented, we find no error. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT
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