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CASE NO. 5710 CRB-4-11-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 14, 2012
DONNA M. LOEHFELM
TOWN OF STRATFORD-BOARD OF EDUCATION
PMA CUSTOMER SERVICE CENTER
The claimant was represented by Bradford J. Sullivan, Esq., Sullivan Heiser, LLC, 4 Post Office Square, Clinton, CT 06413.
The respondent was represented by Matthias J. DeAngelo, Esq., The Cotter Law Firm, 2563 South Main Street, Suite 201, Stratford, CT 06115.
This Petition for Review from the November 18, 2011 Findings and Dismissal of the Commissioner acting for the Fourth District was heard May 18, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the November 18, 2011 Findings and Dismissal of the Commissioner acting for the Fourth District. In that Findings and Dismissal the trial commissioner concluded that an injury sustained by the claimant, and which was alleged to be the result of a fall on a staircase at her employer’s premises, was not compensable.
The facts in this matter are as follows. On March 24, 2008, the claimant fell while ascending a staircase at Bunnell High School in Stratford, CT. At the time the claimant was employed by the respondent as a tutor. Following the fall on the staircase the claimant required medical treatment which included back surgery. The trial commissioner determined that while the claimant’s fall “incurred in the course of her employment, it did not arise out of the employment.” Findings, ¶ A. Thereafter, the trial commissioner dismissed the claim.
Among the factual findings underpinning the trial commissioner’s decision was the fact that in February 2005, the claimant was involved in a motor vehicle accident. In that motor vehicle accident the claimant’s vehicle was in a collision with a police car. In November 2007, as a result of injuries sustained in that motor vehicle accident, the claimant underwent lumbar back surgery, more specifically, a lumbar anterior interbody fusion with cages. On or about February 20, 2008, the claimant returned to work at Bunnell High School.
In the proceedings below, the respondent argued that the injury claimed from the March 24, 2008 fall on the stairs was not a new injury but was caused by claimant’s legs giving out as a result of her earlier back surgery. Findings, ¶ 12. To that end, the claimant testified that her fall on the stairs was because her legs gave out. She further testified that she did not suffer from dizziness prior to the fall nor was there any defect associated with the stairs. The claimant testified that following the 2005 motor vehicle accident she experienced pain in her right leg with intermittent numbness and tingling. The claimant also testified that the March 24, 2008 fall was not the first time that her legs gave out, but was the first time they gave out to the extent she experienced when she fell on that date. Findings, ¶ 13.
On appeal, the claimant-appellant presents the following issue; whether the trial commissioner misapplied the law to the facts of this matter.1 The claimant-appellant argues that the trial commissioner failed to apply established case law which provides the employer takes the claimant as he finds him. See Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996); O’Leary v. Wal-Mart Associates, Inc., 5395 CRB-3-08-11 (October 27, 2009). Further, the claimant-appellant references and quotes our Supreme Court’s opinion in Birnie v. Electric Boat Corp., 288 Conn. 392 (2008) as follows:
The law requires that a claimant prove that an injury “arose out of” and “in the course of employment.” These are seemingly two separate elements, but “in practice, the two tests of ‘arising out of’ and ‘in the course of’ tend to merge into a single determination of work-relatedness.” Birnie v. Electric Boat Corp., 288 Conn. 392, 408 (2008). A claimant “must prove that the injury is causally connected to the employment” in order to recover compensation. Id. To establish a causal connection to employment, a claimant must satisfy a “substantial factor” causation standard. Id., at 409. See also Norton v. Barton’s Bias Narrow Fabric Co., 106 Conn. 360 (1927).
Claimant’s Appeal of Trial Commissioner’s Decision Dated November 18, 2011 filed March 14, 2012 [Appellant’s Brief] pp.4-5.
The appellant also argues:
In accordance with our case law, therefore, the substantial factor causation standard simply requires that the employment or the risks incidental thereto, “contribute to the development of the injury in more than a de minimis way.” Birnie, 288 Conn. at 412-13. Thus, one line of inquiry may be whether the employment developed the injury in any material degree. See e.g., Hartz v. Hartford Faience Co., 90 Conn. 539, 544 (1916). (Emphasis ours.)
Appellant’s Brief, p. 5.
We emphasize the appellant’s reference to Hartz, supra, and that court’s counseling that “one line of inquiry may be whether the employment developed the injury and any material degree.” Further, as our Supreme Court stated in Madore v. New Departure Mfg. Co., 104 Conn. 709, 714-15 (1926), “[t]he fact that injuries, whether from accident or disease, happen contemporaneously or coincidently with the employment affords no basis for an award under our Act. Injuries of that nature which arise in the course of the employment, unless they also arise out of the employment, do not come within our Act.” See also Love v. William W. Backus Hospital, 5255 CRB-2-07-8 (June 24, 2008).
Applying the above legal standard to the conclusion reached by the trial commissioner we find no error. The trier’s determination on this issue was supported by the claimant’s own testimony. April 21, 2011 Transcript, pp. 65-66. Additionally, the claimant put into the record the independent medical examination report of Dr. David B. Brown. Claimant’s Exhibit D. In his report of October 13, 2008, Dr. Brown opined that, “As a result of the motor vehicle accident of February 18, 2005, she is entitled to a 20% permanent partial impairment of the lumbar spine.” Dr. Brown further states “[t]he patient underwent anterior discectomy and cages, L5-S1 performed on November 19, 2007. Unfortunately symptoms did not resolve following this procedure and a second posterior approach was required on June 30, 2008 consisting of fusion with pedicle screw and rods, L5-S-1.” Dr. Brown’s report fails to mention the claimant’s fall on March 24, 2008, or what effect that fall had on the worsening of claimant’s back symptoms.
The appellant contends the opinion of Dr. Brown was for the purpose of the third-party action relating to the motor vehicle accident of February 18, 2005. Be that as it may, the claimant put the report into evidence and it was therefore within the trial commissioner’s discretion to accord whatever weight and credibility she deemed appropriate. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).
We therefore affirm the November 18, 2011 Findings and Dismissal of the Commissioner acting for the Fourth District.
Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur.
1 In its initial appeal documents the claimant-appellant appeared to disagree with some of the trier’s factual findings. At oral argument the appellant conceded that a motion to correct had not been filed and thus, the facts stand as found by the trial commissioner. BACK TO TEXT
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