Opinion
CASE NO. 03536 CRB-01-97-2CLAIM NO. 100015170
MAY 26, 1998
The claimant was represented by Joseph Quinn, Esq., Furniss Quinn.
The respondents were represented by Robert S. Cullen, Esq., Law Offices of Christine Harrigan.
This Petition for Review from the February 5, 1997 Finding and Award of the Commissioner acting for the First District was heard October 17, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
The claimant was represented by Richard Lynch, Esq., Lynch, Traub, Keefe Errante.
The respondents were represented by Maureen E. Driscoll, Esq., Maher Williams.
This Petition for Review from the March 20, 1997 Finding of Compensability by the Commissioner acting for the Third District was heard November 21, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
OPINION
The claimant has petitioned for review from the February 5, 1997 Finding and Award of the trial commissioner acting for the First District. In support of his appeal, the claimant contends that the trial commissioner erred in denying his request for the following: (1) temporary partial benefits effective upon the claimant's retirement; (2) a scarring award; and (3) a permanent partial disability award. We find no error.
The trial commissioner found the following relevant facts. On January 10, 1973, the claimant incurred a left inguinal hernia injury which arose out of and during the course of his employment. The claimant did not lose any time from work and incurred no significant medical expenses. In March of 1982, the claimant underwent surgery to repair the hernia. The claimant continued to feel pain, and again underwent surgery on March 5, 1990. Dr. Bradley, who performed the surgery, explored the previous left inguinal hernia and noted a neroma in the ilioinguinal nerve. The claimant was out of work for approximately six weeks. The claimant testified that when he returned to work after March of 1990, the pain was worse and that he was unable to perform "on call" overtime, although he did perform regular overtime. The claimant retired effective March 31, 1993.
We will first address the claimant's contention that the trial commissioner erred in denying the claimant's request for temporary partial disability benefits effective upon the claimant's retirement on March 31, 1993. Whether a claimant has satisfied the statutory criteria for § 31-308(a) wage differential benefits is a factual determination for the trial commissioner. Wright v. Institute of Professional Practice, 13 Conn. Workers' Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995). The claimant contends that medical records from 1992 and a report from 1995 indicate that the claimant was unable to perform his job duties due to pain from the compensable injury. The trial commissioner specifically found, however, that when the claimant retired on March 31, 1993, there were "no contemporaneous medical reports that indicate that the claimant could not perform his job." (Finding No. 20) (emphasis added). The trial commissioner further found that there were no witnesses who testified that the claimant indicated to them that he was forced to retire because of the pain.
Moreover, the trial commissioner found that the claimant did not search for work after his retirement. Although our statutes do not require a claimant to perform a work search, it has been accepted as one evidentiary basis to demonstrate willingness to work and the availability of suitable light duty employment. Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996); Goncalves v. Cornwall Patterson, 10 Conn. Workers' Comp. Rev. Op. 43, 1111 CRD-4-90-9 (Jan. 28, 1992). In the instant case, the trial commissioner's determination that the claimant's retirement was not caused by the compensable injury is based upon the credibility which he accorded the evidence. Accordingly, we may not disturb the trial commissioner's conclusion. Miller v. TVCCA, 12 Conn. Workers' Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994), affd., 39 Conn. App. 935 (1995). We conclude that the trial commissioner's denial of temporary partial disability benefits is fully supported by the record.
Next, we will address the claimant's contention that the trial commissioner erred in denying his request for a scarring award pursuant to § 31-308a. At the time of the claimant's January 10, 1973 injury, § 31-308(d) (now § 31-308a) provided that "no compensation shall be awarded . . . for any scar resulting from an inguinal hernia operation or any spinal surgery." Based upon the above provision, the trial commissioner concluded that the claimant's scar was not compensable. In support of his appeal, the claimant contends that he is entitled to a scarring award for the March 5, 1990 surgery because that surgery was exploratory in nature and more extensive than the surgery of 1982. We disagree. The medical evidence supports the trial commissioner's determination that the March 5, 1990 surgery constituted an inguinal hernia operation. The trial commissioner properly denied the claimant's request for a scarring award based upon the statutory language prohibiting an award for "any scar resulting from an inguinal hernia operation."
Finally, the claimant contends that the trial commissioner erred in failing to award a permanent partial disability pursuant to § 31-308(b). The trial commissioner specifically found that no award could be made at that time because the parties had not requested said award. The trial commissioner's decision does not deny the claimant the opportunity to request a decision regarding permanent partial disability.
The trial commissioner's decision is affirmed.
Commissioners James J. Metro and John A. Mastropietro concur.
Frances M. Wynn Administrative Hearings Specialist
OPINION
The respondents have petitioned for review from the March 20, 1997 Finding of Compensability by the Commissioner acting for the Third District. They contend that the trier erred by ruling that liability for the claimant's disc surgery was allocable to three earlier compensable injuries rather than a 1995 injury that occurred at the claimant's home. We affirm the trial commissioner's decision.
The trial commissioner found that the claimant had been employed as a police officer by the Town of Orange since 1988. In 1989 he suffered a lumbar spine injury when he was involved in a motor vehicle accident during the course of his employment. A similar incident occurred again in 1992. Both times, he was treated by Dr. Nolasco, and returned to work. The claimant stated that these back injuries caused him to experience muscle stiffness, pain and soreness, and made it uncomfortable to sit, stand or lie down.
In March 1993, the claimant suffered another work-related back injury after slipping on ice while responding to a burglar alarm. He stated that this injury caused sharp pain in his back and hips, and that he has suffered from sciatic pain ever since. Dr. Nolasco referred the claimant to Dr. Mastroianni, a neurosurgeon, after the 1993 injury. The claimant then began wearing a back support, which he claims to have used whenever he worked overtime. He also began an exercise regime in 1993 for his back muscles. An MRI was performed, and Dr. Garver's report did not indicate a herniated disc in the lumbar area, although it did mention a small bulge at L4-5. Finding of Compensability, ¶ 34; Respondent's Exhibit 1. Dr. Mastroianni's report noted "mild degenerative changes at several levels, " with no definite disc herniation. Claimant's Exhibit U.
On September 6, 1995, the claimant was cleaning his garage at home when he lifted a small broom and a light bag of trash. He experienced back pain and fell to the floor. He was hospitalized, and an MRI indicated that he had suffered an L5-S 1 disc herniation, for which Dr. Mastroianni performed surgery on September 25, 1995. Dr. Mastroianni opined that the herniated disc had been present for a long period of time because an osteophyte had formed on the L5-S1 disc, and osteophytes take months or years to form. The films from the 1993 MRI were no longer available, but Dr. Mastroianni stated that he had reviewed them in the past and believed there was an indication of a herniated disc based on the MRI and the claimant's symptoms and functional limitations in 1993. The doctor felt that the September 6, 1995 incident was minor, and could not have caused a major change in the claimant's disc.
Dr. Robinson, who examined the claimant in December 1995, was of a different opinion. He thought that the claimant's 1989, 1992 and 1993 injuries were simply musculoligamentous strains of the lumbar spine, and opined that the claimant had suffered the herniated disc on September 6, 1995. The trial commissioner accepted Dr. Mastroianni's opinion that the claimant's herniated disc was related to his previous lumbar spine injuries over the opinion of Dr. Robinson, and ruled the claimant's lumbar disc surgery to be compensable. The respondents have appealed that decision.
Determining whether an injury arose out of and in the course of employment is a question of fact for the trial commissioner. Crochiere v. Board of Education, 227 Conn. 333, 346 (1993). When this board considers an appeal from a commissioner's decision, we do not try the facts de novo. Id., 347. As it is the trial commissioner who possesses the authority to determine the weight of the evidence and the credibility of the witnesses; Webb v. Pfizer, Inc., 14 Conn. Workers' Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); the findings made by the trier must stand as long as they are supported by evidence in the record, and have not omitted material and undisputed facts. Id., 71. We also must uphold the trial commissioner's conclusions unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Id.; Crochiere, supra.
The respondents allege that the commissioner erred in denying the corrections requested in their Motion to Correct. Where a party's requested corrections pertain to the credibility of the witnesses or would not affect the outcome of a case, the trial commissioner is not required to grant those corrections. Kish v. Nursing Home Care. Inc., 47 Conn. App. 620, 627 (1998); Webb, supra, 71. A significant number of the corrections discussed in the respondents' brief would merely be cumulative if placed in the findings, such as the fact that the claimant returned to duty shortly after each of his three injuries that occurred at work, and his lack of medical treatment between October 1993 and September 1995.
Other requested corrections concerned the credibility of lay and medical evidence, which is specifically the prerogative of the trial commissioner. See Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). The trier was not required to cite Dr. Lipow's report in his decision, nor was he required to credit Dr. Robinson's opinion over that of Dr. Mastroianni. Further, the commissioner was entitled to accept Dr. Mastroianni's explanation regarding his failure to pick up the severity of the claimant's symptoms after the 1993 MRI, as well as his attribution of the causal relationship between the claimant's compensable back injuries and his 1995 disc herniation. See Claimant's Exhibit G, p. 17, 37-38. Ultimately, the trial commissioner's factual findings recited earlier in this opinion are supported by evidence in the record, and this board does not have the power to alter them in any way on review. Kish, supra; Webb, supra.
The respondents also argue that the claimant's herniated disc occurred while he was at home cleaning out his garage, and thus cannot have arisen out of and in the course of his employment. They contend that the claimant had been healthy for two years prior to the injury, and thus the "worsening" of his condition as a result of the 1995 incident cannot be considered a relapse or recurrence of his previous injury. We disagree.
In Niebler v. Waldbaum's Foodmart, 14 Conn. Workers' Comp. Rev. Op. 61, 1851 CRB-3-93-9 (May 11, 1995), a claimant suffered repetitive back strains at work while carrying heavy containers, which the commissioner found to be responsible for a disc herniation that actually occurred while the claimant was bending over in her house. Id., 74. We stated that the claimant's act of bending was a "trivial" incident that did not interrupt the chain of causation between her workplace repetitive trauma and her disc herniation. A similar situation occurred in Hanzlik v. James Freccia Auto Body, 15 Conn. Workers' Comp. Rev. Op. 2, 1984 CRB-7-94-3 (Nov. 1, 1995), aff'd, 43 Conn. App. 908 (1996) (per curiam), where the claimant herniated a disc in 1992 while picking up a three-ounce piece of car molding. That injury was found to be attributable to a 1989 injury that predisposed the claimant to a subsequent disc herniation.
Here, Dr. Mastroianni explicitly testified that the 1995 incident was minor, and that the claimant's need for surgery was at least 80-85% due to the previous disc herniation and its probable natural progression. He also stated that surgery would have been inevitable at some point, even without the 1995 lifting incident. Claimant's Exhibit G, p. 36-38. This testimony supports an outcome similar to those in Hanzlik and Neibler, and the commissioner found accordingly. His decision was fully consistent with our law. The issue of a potential apportionment of responsibility for this incident as between the three work-related injuries is raised in the respondents' brief, but was not discussed at trial. Thus, we cannot review that matter on appeal.
The trial commissioner's decision is affirmed. Insofar as benefits already due have not been paid pending the outcome of this appeal, the claimant is awarded interest pursuant to § 31-301c(b).
Commissioners James J. Metro and John A. Mastropietro concur.