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DaSilva v. City of Danbury

CASE NO. 5263 CRB-7-07-8



NOVEMBER 5, 2008











The claimant was represented by Barry S. Moller, Esq., Law Offices of Cramer & Anderson, 46 West Street, P.O. Box 278, Litchfield, CT 06759-0278.

The respondents were represented by Collette Griffin, Esq., Howd & Ludorf, 65 Wethersfield Avenue, Hartford, CT 06109.

This Petition for Review1 from the August 3, 2007 Finding and Dismissal of the Commissioner acting for the Seventh District was heard February 29, 2008 before a Compensation Review Board panel consisting of Commissioners Ernie R. Walker, Amado J. Vargas and Charles F. Senich.


ERNIE R. WALKER, COMMISSIONER. The claimant in this matter appeals from a Finding and Dismissal of her claim that she suffered a compensable injury while in the employ of the respondent City of Danbury Board of Education. The trial commissioner concluded that the claimant pursued this matter on a single basis of recovery based on her averment that she suffered a single date of injury; and determined the medical evidence did not support this argument. On appeal, the claimant argues that the medical evidence did support a finding she suffered a single accidental injury on June 9, 2005. We conclude that this goes to the weighing of the medical evidence and therefore, affirm the decision of the trial commissioner.

The trial commissioner found the following facts. On June 9, 2005, the claimant was working as a physical education teacher at Mill Ridge Intermediate School in Danbury. Prior to that date she was working 8-10 hours per week as a waitress. On June 9, 2005 the claimant began working at 8:00 a.m. placing orange cones for a Field Day event. She testified her foot had been sore for the two days prior to this event and shortly after she began working she felt a sharp pain in her left foot, causing her to limp. She did not finish the Field Day activities and finished the day in the school’s Media Center. Her account of her activities on June 9, 2005 was corroborated by other witnesses. The claimant returned to work on June 10, 2005 and finished the rest of the school year in pain.

The claimant had treated in 2002 with Dr. Joseph Treadwell for a sore fibular sesamoid bone in her left foot. At the end of the 2005 school year she was examined by Dr. Treadwell who determined the claimant had sustained a fracture of the fibular sesamoid. She worked briefly as a waitress following the end of the school year and then was treated by Richard J. Bailey, D.C. who utilized manipulation, myofascial release, therapeutic exercise and aggressive physiotherapy to induce healing of the fracture and pain. Eventually, Dr. Bailey felt that the claimant should see an orthopedist. The claimant then was examined by Dr. Robert T. Deveney of Danbury Orthopedic Associates, P.C. He diagnosed the claimant with a tripod fracture of the lateral sesamoid bone. He placed the claimant’s foot in an air boot/rocker boot with crutches and restricted her to light duty.

The claimant could not return to work with crutches so she did not return to work until January 2006. She said her foot then felt “O.K.” until she reinjured it in March of 2006 while practicing the waltz with a student. She took a leave of absence from work after this injury. Following the re-injury she treated with Dr. Michael Z. Fein for a non-healing fracture of the fibular sesamoid of the left foot. Dr. Fein administered cortisone shots which relieved the pain. Dr. Fein opined that the claimant had a fractured fibular sesamoid that was not healing due to avascular necrosis or aseptic necrosis. He attributed causation to the trauma sustained to the claimant’s left foot on June 9, 2005; describing the injury as being similar to a “march fracture” or “stress fracture.” While Dr. Fein stated the injury could be the result of cumulative activities, he described the injury that occurred on June 9, 2005 as “the straw that broke the camel’s back.”

The respondents presented testimony from Dr. Raymond Sullivan, a board certified orthopedist. Dr. Sullivan testified at his deposition that he did not believe the claimant’s foot problem was directly related to any injury the claimant suffered at work. Rather, his opinion was that she developed avascular necrosis prior to her June 9, 2005 date of injury and that this condition caused the sesamoid bone to deteriorate due to a diminished blood supply to the toe. Dr. Sullivan further testified that the necrotic condition was, with a reasonable degree of medical probability, the cause of the pain in her foot a few days prior to her June 9, 2005 date of injury. He testified that fractures similar to that of the claimant were generally due to repetitive trauma and four or five hours of walking would have produced only normal stress on the claimant’s foot and should not have led to a fracture. He described the events of June 9, 2005 as a “temporary aggravation” of a preexisting condition.

Based on these subordinate facts the trial commissioner issued a Finding and Dismissal on August 3, 2007. The commissioner concluded the claimant suffered an injury on June 9, 2005, but that the claimant’s injury was the result of repetitive trauma via a “march” or “stress” fracture. The trial commissioner credited the testimony of the respondent’s expert witness, Dr. Sullivan, that a “march” or “stress” fracture of the claimant’s toe could not have occurred in such a short amount of time. Since the claimant pursued this matter as a single date of injury claim; the trial commissioner determined that she had failed to sustain her burden of proof the injury was work related and dismissed the claim.

The claimant then filed a Motion to Correct. The Motion sought specifically to find the claimant had sustained her burden of proof the fracture was the result of a specific accident arising out of employment on June 9, 2005. The trial commissioner denied this Motion and this appeal ensued.

The claimant’s appeal is based on two grounds. She argues that the Motion to Correct should have been granted. She also argues that the decision herein should be overturned due to precedent in Blakeslee v. Platt Bros. & Co., 279 Conn. 239 (2006) as to the effect preexisting conditions may have on the claimant’s injury. Neither argument is sufficiently persuasive so as to cause this panel to reverse the decision of the trial commissioner.

In general, we must extend a great deal of deference to the findings of the trial commissioner. We recently restated this standard in Clarizio v. Brennan Construction Company, 5281 CRB-5-07-10 (September 24, 2008).

We begin by stating that the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as fact-finder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

The gravamen of the claimant’s appeal was that her evidence that she sustained a single accidental injury on June 9, 2005 was so compelling as to require the trial commissioner to grant her Motion to Correct. We agree that her treating physician, Dr. Fein, did testify consistent with this theory of recovery. The trial commissioner, however, found that Dr. Sullivan specifically discounted that the claimant’s activity on that date could have produced a fracture. The trial commissioner specifically found this opinion credible. We must generally defer to such an assessment.

“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; Huertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007), Solonick v. Electric Boat Corporation, 5170 CRB-2-06-12 (January 9, 2008).

The claimant herein has pursued her claim solely on the basis of a single date of accidental injury. This panel has been willing to give claimants the benefit of the doubt when they have presented alternative theories of recovery for the trial commissioner’s consideration; see Sweet v. Coca Cola Bottling Company, 5262 CRB-1-07-8 (August 27, 2008) and Goulbourne v. State/Dept. of Correction, 5192 CRB-1-07-1 (January 17, 2008).2 In the present matter, the claimant submitted proposed findings of fact based on a single date of accidental injury and subsequent to the Finding and Dismissal, submitted a Motion to Correct based solely on a single date of accidental injury. We therefore find this matter similar to Abbotts v. Pace Motor Line, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008), where a claimant pursued his claim before the trial commissioner solely on the basis of an accidental injury and was denied on that basis. As the claimant in Abbotts failed to find a Motion to Correct seeking recovery on the basis of repetitive trauma, he was then bound by the trial commissioner’s adverse decision on the issue of accidental injury.3

We also find the claimant’s reliance on Blakeslee, supra, unpersuasive. In Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008) the claimant similarly relied on Blakeslee, asserting that a heart attack attributed to nonemployment factors by the respondent’s expert should be deemed compensable when it occurs at work. We distinguished Blakeslee based on the facts in that case.

The claimant’s overall principle in this case appears to be the locus of the injury should be the primary factor in determining compensability, which is inconsistent with Fair [v. People’s Savings Bank, 207 Conn. 535 (1988)]. In addition, the claimant’s citation of Blakeslee v. Platt Bros. & Co., 279 Conn. 239 (2006) does not stand for the proposition that a claimant’s pre-existing condition now trumps traditional standards of causation when determining entitlement for an award under Chapter 568. Vitti, supra.

As we concluded “[t]he claimant’s heart attack in this case is more akin to the claimant’s original seizure in Blakeslee, supra.” Id. We determined that Mr. Vitti’s injury could reasonably be found noncompensable. In the present case, Dr. Sullivan testified that the events of June 9, 2005 were not sufficient to cause the claimant’s fracture. We therefore find Dr. Sullivan’s testimony in the present case congruent to the testimony of Dr. Krauthamer in Vitti, supra, that the claimant’s heart attack was not job related. The claimant retains the burden of establishing a nexus of causation between employment and injury, Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007). Therefore, in the present case we uphold the trial commissioner’s decision on this issue.

As a result, we conclude the trial commissioner’s determination was a reasonable exercise of her discretion. The burden of proof in a workers’ compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001); Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006). The evidence presented by the claimant simply, as a matter of law, did not compel the trial commissioner to determine that the claimant had suffered a compensable accidental injury on June 9, 2005. We affirm the Finding and Dismissal and dismiss this appeal.

Commissioners Charles F. Senich and Amado J. Vargas concur in this opinion.

1 We note an extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 We can distinguish Sweet v. Coca Cola Bottling Company, 5262 CRB-1-07-8 (August 27, 2008) where the trial commissioner was persuaded by the claimant’s factual argument that his injuries were job related. BACK TO TEXT

3 We note that the record below is somewhat murky on whether the claimant sought a separate formal hearing on the issue of repetitive trauma. It appears a formal hearing on this issue was scheduled for July 20, 2007 but no opinion was rendered on that matter. In the present appeal, we are bound by the factual record and the parties’ briefs before this panel. The single issue before this panel at this time is whether the claimant established she suffered a single accidental injury on June 9, 2005. Since the claimant did not include the absence of a repetitive trauma award in her brief, her motion to correct, or her reasons for appeal, we cannot extend appellate review to this issue. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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