Opinion
CASE NO. 1325 CRD-7-91-10
JUNE 16, 1993
The claimant was represented by Harold Brienes, Esq.
The respondent was represented by Michael L. Tierney, Esq., Cotter, Cotter and Sohon.
This Petition for Review from the September 26, 1991 Finding and Dismissal of the Commissioner the Seventh District was heard September 25, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Frank Verrilli and James Metro.
OPINION
The claimant has petitioned for review from the September 26, 1991 Finding and Dismissal of the Commissioner for the Seventh District. In that Finding and Dismissal the trial commissioner dismissed the claimant's claim that back pain experienced by him on May 24, 1990 and July 3, 1990 were recurrences of a January 12, 1990 compensable back injury.
The pertinent facts are as follows. The claimant sustained a compensable injury to his back on January 12, 1990. On May 24, 1990 the claimant was working in the delicatessen department of the employer's store. In the course of that work, he attempted to lift several boxes of chickens and experienced back pain. The claimant was then treated by Dr. Peter C. Luecken, a chiropractor, three times per week for three weeks thereafter. The claimant initially treated with Dr. Luecken in 1985 for a neck and shoulder injury. The claimant stayed out of work for the first week following the May 24, 1990 back pain experience.
On July 2, 1990 the claimant's back pain worsened and again the claimant was treated by Dr. Luecken. On July 3, 1990, the claimant began his vacation. While working in his garden on that date, the claimant again experienced back pain similar to that experienced May 24, 1990.
Dr. Luecken diagnosed the claimant's May 24, 1990 pain incident as "`recurrent acute L/S sprain with left leg sciatic'" and gave the same diagnosis to the claimant's July 3, 1990 pain incident. Dr. Luecken also attributed the claimant's July 3, 1990 pain event as directly related to "`. . .his previous accident at work."' See paragraphs 10, 12, and 13.
A second opinion was then requested of Dr. Stuart C. Belkin, an orthopedic surgeon. Dr. Belkin examined the claimant and opined that the claimant's back pain experienced May 24, 1990 and July 3, 1990 was causally related to a "pre-existing injury which. . . developed 4-5 years ago and was exacerbated at work in May of 1990." Claimant's Exhibit B October 31, 1990 letter of Dr. Stuart Belkin. The trial commissioner then concluded that the claimant failed to prove that the back pain experienced May 24, 1990 and July 3, 1990 by the claimant constituted recurrences of the January 12, 1990 compensable back injury.
The claimant took the instant appeal. The ultimate issue presented for review is whether the trial commissioner erred in concluding that the back pain experienced by the claimant on May 24, 1990 and July 3, 1990 were not recurrences of the January 12, 1990 compensable back injury. Whether an injury is a recurrence or relapse of a prior compensable injury is a factual determination and thus, within the purview of the trial commissioner, See e.g., Watson v. American Cyanamid, 9 Conn. Workers' Comp. Rev. Op. 90, 911 CRD-8-89-8 (1991); Janov v. General Electric Co., 4 Conn. Workers' Comp. Rev. Op. 44, 491 CRD-4-86 (1987). As such we will not disturb the conclusions of the trial commissioner unless contrary to law, without evidence or based on unreasonable or impermissible factual references. Fair v. People's Savings Bank, 207 Conn. 535 (1988). Additionally, we will not disturb the conclusions of the trial commissioner which were based on the weight and credibility to be accorded the evidence before him. Rivera Conn. 524 (1975). Clearly, there was evidence before the trial commissioner from which he could have reasonably concluded as he did.
We therefore affirm the Commissioner of the Seventh District's September 26, 1991 Finding and Dismissal.
Commissioners Frank Verrilli and James Metro concur.