Opinion
CASE NO. 5284 CRB-7-07-10
FEBRUARY 25, 2009
This Petition for Review from the September 28, 2007 Finding and Award of the Commissioner acting for the Seventh District was heard October 28, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.
The claimant was represented by Brendan T. Canty, Esq., Kerin Canty, P.C., 193 East Avenue, Norwalk, CT 06855.
The respondents were represented by Lynn M. Raccio, Esq., Law Offices of Jack V. Genovese, II, 200 Glastonbury Boulevard, Suite 301, Glastonbury, CT 06033.
OPINION
The respondents in this matter appeal from the September 28, 2007 Finding and Award of the Commissioner acting for the Seventh District. In that Finding and Award the trial commissioner concluded that the claimant sustained a low back injury that arose out of and in the course of his employment. The pertinent facts are as follows.
We note extensions of time were granted during the pendency of this appeal.
The claimant was employed by the respondent employer as a home heating oil delivery person. The claimant alleged that as a result of that employment he suffered a hernia injury and lower back injury. The hernia injury was accepted by the respondents, but the claim for the claimant's back problem was contested. The record in this matter indicates that on December 19, 2005 the claimant filed a Form 30C written notice of claim in which he alleged hernia and back injuries due to repetitive trauma. The date of injury on the notice is given as July 25, 2005.
In testimony before the trial commissioner, the claimant described his duties which included making some 40 to 50 daily deliveries of home heating oil. The completion of that task required the carting of a 170 foot, 5 inch round hose filled with oil over various terrain and in various weather. The claimant specifically cited one incident occurring on December 24, 2004 in which he fell twice while making an oil delivery. The claimant also testified that driving the oil delivery truck required climbing up into and out of the truck's cab as well as enduring the uneven, bumpy ride of the truck, all of which were difficult on his back.
The claimant continued to work for the respondent until July 25, 2005 when he concluded that he could no longer physically perform the work required. In August, 2005, the claimant underwent hernia surgery. Following claimant's hernia surgery the claimant complained of back pain. It was the claimant's contention that he did not complain of back pain previously, as the hernia masked the back pain.
The trial commissioner concluded that the claimant's back complaints were the result of repetitive trauma arising from his employment. Specifically, the commissioner found in ¶¶ A-C,
A. The claimant clearly had a job involving repetitive activities.
B. The claimant denied engaging in any other activity, outside of his work-related duties, that would give rise to his back pathology.
C. Even though the claimant was unable to produce a medical that expressly stated that his low back condition arose out of his repetitive activities with the respondent, the trial commissioner is not required to ignore common sense in arriving at a conclusion on causation. (emphasis ours).
Thus, the issue on appeal turns on whether the trial commissioner's reliance on "common sense" was in error. Our Appellate Court noted in Sprague v. Linden Tree Service, Inc., 80 Conn. App. 670, 676 (2003)
. . . expert medical opinion is not necessary to show the causal connection between injury and work in cases in which the commissioner could have concluded that it was more likely that an injury occurred from the type of work in which the plaintiff was engaged than from some unknown cause. See Garofola v. Yale Towne Mfg. Co., 131 Conn. 572, 574, 41 A.2d 451 (1945). Only when the theory of cause and effect showing the association between injury and work involves complex medical issues outside common knowledge and ordinary human experience must the commissioner turn to expert testimony to resolve such issues and to confirm by expert opinion the association between injury and work. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151-52, 291 A.2d 743 (1972); Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449, 774 A.2d 992 (2001). (emphasis ours).
Id. at 676
Thus, the issue here turns on whether the trial commissioner abused her discretion in concluding that the link between claimant's back injury and the repetitive trauma incidents of his work were matters within common knowledge. In Garofola v. Yale Towne Mfg. Co., 131 Conn. 572, 574 (1945) our Supreme Court held that a commissioner's conclusion that a claimant sustained a back injury was "in accord with ordinary human experience that such a sprain might well ensue in consequence of heavy work such as that in which the plaintiff was engaged."
In the matter at hand the testimony of the claimant provided support for each of the trier's findings as to the physical discomfort and strains endured by the claimant as a result of his work. The claimant testified and the medical records reflect that the claimant stated he had no prior back problems. See Claimant's Exhibit A, December 21, 2006 Transcript, pp. 12-13. The record also reflected that the claimant had undergone treatment for a hernia, liability for which was accepted by the respondent. While the issue of the proximate cause of the claimant's hernia was not a matter before the trial commissioner or this board it is within the ambit of common knowledge that a hernia is the result of muscle strain. The record here reflects that the tasks and the conditions under which the claimant performed his job could reasonably support an inference that the injuries sustained by the claimant as a result of his work were not limited to his hernia. The claimant testified that the hoses he pulled in the course of delivering oil were long and heavy and that he had to pull them 30 to 40 times a day.
In short the claimant testified that he fell December 24, 2004, but that fall was not an isolated incident. He testified that he fell numerous times in the course of making deliveries. See December 21, 2006 Transcript, p. 10. We believe the trial commissioner's conclusion was not an abuse of her discretion.
Finally, the appellants argue that the trier's denial of the Motion to Correct constituted error. Again, we disagree with the appellants' assertion. The corrections sought are nothing more than a request for the trial commissioner to weigh and credit the evidence so as to favor the outcome sought by the appellants. Love v. William W. Backus Hospital, 5255 CRB-2-07-8 (June 24, 2008).
We therefore, affirm the September 28, 2007 Finding and Award of the Commissioner acting for the Seventh District.