Opinion
CASE NO. 1732 CRB-4-93-5
MARCH 9, 1995
The claimant was represented by Steven H. Cousins, Esq., Cousins Johnson.
The respondents were represented by James T. Baldwin, Esq., Cotter, Cotter Sohon.
This Petition for Review from the May 18, 1993 Finding and Dismissal of the Commissioner acting for the Fourth District was heard May 20, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.
OPINION
The claimant has petitioned for review from the May 18, 1993 Finding and Dismissal of the Commissioner for the Fourth District. He contends that the commissioner's dismissal of his claim was not supported by the facts found. We affirm the trial commissioner's decision.
The claimant, Daniel Baccielo, sustained a work-related injury to his lower back on January 5, 1987, while in the employ of the respondent Business Products, Inc. After x-rays were taken the next day, the injury was diagnosed by a hospital physician as an "acute lumbar strain." The claimant returned to work after two days of bed rest and sought no further treatment for the time being. The claimant testified that he restricted his lifting activities as warehouse manager subsequent to the injury, and in January 1988 accepted the more sedentary position of customer representative with the respondent. He also testified that since 1989, he has been training for body building competitions, and has worked out at an athletic club an average of three or four times per week.
During a general health examination on April 10, 1991, the claimant complained of numbness in his leg to the physician. After two MRIs were performed, the claimant was diagnosed with a herniated lumbar disc. The claimant claims that the herniated disc was caused by the compensable injury of January 5, 1987. The commissioner noted that the claimant testified that he had experienced muscle spasms and periodic numbness in his back since he began working out. He also noted that the two doctors who had performed MRIs on the claimant and had diagnosed his herniated disc had not considered the claimant's body building program in concluding that there was a causal relationship between the 1987 injury and the herniated disc.
The commissioner instead credited the report of the physician who performed the examination ordered by the commissioner pursuant to § 31-305 C.G.S. In that doctor's opinion, it was probable that the claimant had sustained a lumbar disc strain as a result of the 1987 injury rather than a lumbar disc herniation. That condition was adversely affected by the claimant's body building activities, which contributed in large part to the subsequent herniation. The commissioner concluded that the claimant had failed to meet his burden of proof that the herniated disc was causally connected to the 1987 compensable injury, and dismissed the claimant's claim.
The claimant argues on appeal that the medical reports, including that of the commissioner's examiner, establish that the claimant's disc herniation was related to the 1987 compensable injury. Thus, he argues that it was improper for the commissioner to deny the claimant's Motion to Correct.
In his brief, the claimant also raised the argument that it was improper for the commissioner to order an examination under § 31-305 in this case. As the claimant did not object to the order when it was given and neither raised the issue in his Motion to Correct or his Reasons for Appeal, we decline to address it further here. See McCarthy v. 10 Star Corp., 10 Conn. Workers' Comp. Rev. Op. 64, 1134 CRD-2-90-11 (March 16, 1992);Peters v. State of Connecticut/Southern Connecticut State University, 10 Conn. Workers' Comp. Rev. Op. 32, 1103 CRD-3-90-8 (Jan. 13, 1992).
It is the responsibility of the commissioner to determine whether a claimant's employment was the proximate cause of his disability. McDonough v. Connecticut Bank Trust Co., 204 Conn. 104, 117 (1987). Such a determination is based on the weight and credibility to be accorded all the evidence, and we are limited on review to determining whether the commissioner's conclusion was supported by evidence and consistent with the applicable law.D'Agostino v. City of Waterbury, 10 Conn. Workers' Comp. Rev. Op. 4, 5, 942 CRD-5-89-11 (April 15, 1991); Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers' Comp. Rev. Op. 234, 235, 1000 CRD-5-90-4 (Oct. 30, 1991).
Here, the commissioner's examiner opined that the physical stress involved in the claimant's body building was the primary cause of the disc herniation. He also stated that, in his opinion, the 1987 back strain was not the cause of the herniation. The commissioner was entitled to credit this report, which was consistent with the testimony of the claimant himself regarding his experiences of back pain, over the testimony of the other physicians. The fact that a back condition may have existed subsequent to the claimant's 1987 injury did not preclude a finding that the body building activities constituted a new link in the chain of causation, thus rendering the claimant's herniation noncompensable. Mathieu v. C M Corporation, 5 Conn. Workers' Comp. Rev. Op. 82, 83, 463 CRD-2-86 (May 11, 1988). As such a finding was within the commissioner's purview, we will not substitute our own conclusions for his. Id.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.