Opinion
CASE NO. 5514 CRB-2-09-12CLAIM NO. 200144804
NOVEMBER 10, 2010
This Petition for Review from the December 3, 2009 Finding and Dismissal of the Commissioner acting for the Second District was heard August 27, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.
The claimant was represented by Thomas P. Tabellione, Esq., The Law Offices of Thomas P. Tabellione, P.C., 35 Pearl Street, Suite 203, New Britain, CT 06051-2651.
The respondents were represented by David C. Davis, Esq., McGann, Bartlett Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
OPINION
The claimant in this matter has appealed from a Finding and Dismissal of his claim asserting his subsequent surgery and disability were the result of a June 9, 2003 back injury. The trial commissioner in this matter was not persuaded by the claimant's evidence and found the opinion of a medical witness the only credible opinion as to causation. We cannot second-guess the trial commissioner's evaluation of medical evidence in this matter. We affirm the Finding and Dismissal and dismiss this appeal.
The trial commissioner found the following facts which are pertinent to our review. The commissioner noted that there had been a June 6, 2007 Finding and Award wherein the claimant filed a timely notice of a June 9, 2003 back injury sustained while adjusting a machine at a trade show in Italy. The employer was notified of the injury on June 23, 2003 and the claimant received treatment the same day at Concentra Medical Center. The claimant testified that he had taken the day off after he returned from Italy, and then the next day reported for work. The claimant's itinerary indicated he returned home on June 11, 2003; which would indicate a return to work on June 13, 2003. The report by Concentra, dated June 23, 2003, contains a history of injury reflecting the first twinge of back pain while sitting in an airplane and attempting to stand up. Dr. James Petrelli diagnosed the claimant with a lumbar strain and prescribed physical therapy. The claimant was not taken out of work or given restriction on work; rather he received physical therapy through July 2, 2003 when he was discharged.
The claimant testified that he continued to perform his regular job but was in pain which progressively got worse. On December 30, 2003 he saw his family physician, Anthony Berger, who ordered x-rays. The claimant was evaluated by Dr. Hungchih Lee at the Connecticut Spine Center on March 29, 2004. The claimant provided a history of back pain in March 2003 and May 2003 which had resolved. Since November 10, 2003 his back pain reoccurred and was constant thereafter. On March 17, 2004 the claimant was evaluated by Dr. Stephen Calderon. The claimant told Dr. Calderon he had a history of episodic back pain over the past 18 months with the last continuous pain since November 2003. On July 26, 2004 the claimant underwent spinal surgery by Dr. Robert J. Banto at New England Baptist Hospital and as a result of a nonunion underwent further back surgery on February 14, 2005.
The claimant was evaluated twice by Dr. William Druckemiller, the respondent's medical examiner. On March 31, 2004 the claimant provided Dr. Druckemiller with a history of spontaneous onset of symptoms in the back and left leg for about five months. Dr. Druckemiller again evaluated the claimant on April 9, 2008 and was provided for the first time with a history of a June 2003 work injury. Dr. Druckemiller opined that medical records do not support the June 2003 injury as a substantial contributing factor to the claimant's condition and further opined that the real date of significance is November 2003 when he experienced a significant onset of leg symptoms.
The trial commissioner also noted that the medical reports of Doctors' Calderon, Druckemiller and Lee did not reference a work injury. The commissioner also noted the claimant was a former semi-professional football player and has had triple bypass surgery in 1991, angioplasty in 1992, knee surgery in 1978 and 1980, bilateral shoulder surgery in 1980, left knee surgery in 1996 and right wrist surgery in 1997.
Based on these subordinate facts the trial commissioner concluded the claimant's testimony as to the dates of injury, history of injury and onset of back pain was somewhat inconsistent, and therefore it lacked credibility. The commissioner found the claimant had preexisting lumbar spondylolisthesis and degenerative changes at L4-5. While the claimant experienced back pain on June 9, 2003 while attending the trade show for the respondent-employer this pain resolved itself by July 2, 2003. The commissioner found the claimant's back pain spontaneously reoccurred in November 2003 which precipitated medical treatment to include surgery. The trial commissioner found Dr. Druckemiller offered the most credible opinion on the cause of the claimant's back symptoms and need for treatment. As the claimant's June 9, 2003 incident proved to be temporary and self-limiting the commissioner determined it was not a substantial contributing factor in the claimant's subsequent disability and need for treatment. As the claimant failed to sustain his burden of proof regarding the impact of the June 9, 2003 incident the trial commissioner dismissed the claim.
The claimant filed a Petition for Review; and, after he received an extension of time, filed a Motion to Correct. The Motion to Correct sought to explain the inconsistencies identified by the trial commissioner. The trial commissioner denied these corrections and the claimant has pursued this appeal.
The gravamen of the claimant's appeal is that the trial commissioner placed too much emphasis on the claimant's ability as a historian. He believes it is "misleading to focus on inconsistencies rather than credibility." Claimant's Brief, p. 2. He also believes that the trial commissioner erred by relying on the respondent's examiner as "he is paid by the industry." Claimant's Brief, p. 3. His counsel argued before this panel that the claimant had no prior back injuries before the 2003 incident, notwithstanding the long list of athletic injuries cited by the trial commissioner. As the claimant views the record, his evidence established that his current condition was the result of the 2003 compensable injury and the trial commissioner erred in not granting an award.
Among the claimant's Reasons for Appeal was an averment that the claimant was denied due process. The claimant has not briefed this issue. Therefore, it is deemed abandoned on appeal. Christy v. Ken's Beverage, Inc., 5157 CRB-8-06-11 (December 7, 2007).
It is black letter law that the claimant has the burden of proving his ailment was caused by a compensable injury. Smith v. Waterbury, 5326 CRB-5-08-3 (February 4, 2009). The claimant must prove that their compensable ailment was a substantial factor in their current disability. Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008); Lamontagne v. F F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008) and Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). The ability of the claimant to provide a compelling argument to the trier of fact is thus decisive in whether he prevails at the formal hearing.
In this matter, the trial commissioner concluded that the various inconsistencies between the claimant's testimony and the medical evidence created an issue of credibility for the claimant. The trial commissioner is the sole judge of witness credibility and we may not intercede on this issue. Burton v. Mottolese, 267 Conn. 1, 40 (2003). The trial commissioner is also solely responsible for the weighting of evidence, see Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007) and O'Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999). The trial commissioner concluded after considering the evidence that the June 9, 2003 incident created a temporary and self-limiting injury for the claimant. We do not find this an unreasonable conclusion based on the evidence on the record.
In particular, we do not find fault with the decision of the trial commissioner to find Dr. Druckemiller a credible witness. The trial commissioner is the sole party responsible for determining whether medical evidence is probative and reliable. We may intercede only when the trial commissioner reaches an improper inference from such evidence.Sullivan v. Madison, 4893 CRB-3-04-12 (June 9, 2006). We have reviewed Respondents' Exhibit 13, Dr. Druckemiller's April 9, 2008 report. The report is lengthy and unequivocally concluded "the injury of June 9, 2003 is not a significant contributing factor for his need for surgery." Id. The trial commissioner could properly adopt this opinion in his Finding Dismissal, as it constitutes probative evidence on the issue of causation. See Weir, supra, Williams, supra, and Huertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007).
The claimant argues it was error for the trial commissioner to reject his Motion to Correct. Since the Motion to Correct essentially sought to interpose the claimant's conclusions as to the facts presented, we find no error. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D'Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002).
The claimant filed a Motion to Admit Additional Evidence. The respondent waived their objection to the admission of this evidence, which consisted of a May 2, 2003 medical report. We do not find, however, this additional evidence demonstrates that the trial commissioner committed legal error in his decision herein.
The claimant had the burden of establishing his need for surgery was the result of an incident sustained while employed by the respondent. The trial commissioner did not find his evidence supporting this claim persuasive; and determined the respondents' expert witness was persuasive. That is his prerogative. We find no error, and herein affirm the Finding and Dismissal. The appeal is dismissed.
Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.