Summary
In Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008) the claimant similarly relied on Blakeslee, asserting that a heart attack attributed to nonemployment factors by the respondent's expert should be deemed compensable when it occurs at work.
Summary of this case from Dasilva v. City of Danbury, NoOpinion
CASE NO. 5247 CRB-7-07-7
AUGUST 21, 2008
This Petition for Review from the July 12, 2007 Finding and Dismissal of the Commissioner acting for the Seventh District was heard January 25, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.
We note that an extension of time was granted during the pendency of this appeal.
The claimant was represented by Daniel A. Benjamin, Esq., Benjamin Gold, 350 Bedford Street, Stamford, CT 06901.
The respondents were represented by Nancy E. Berdon, Esq., Law Offices of Cynthia M. Garraty, Crossroads Corporate Park, 6 Devine Street, 1st Floor, North Haven, CT 06473.
OPINION
This appeal is from the trial commissioner's decision that the claimant's January 28, 2006 heart attack was not a compensable injury. The claimant argues that the number of errors in the trial commissioner's Finding and Dismissal mandate a remand for a hearing de novo. Upon review, we conclude the trial commissioner relied on probative evidence in denying this claim; hence we conclude any error which occurred was at best harmless error.
The parties agree on the overall scenario which prompted this claim. The claimant was a 58 year old pipe fitter at the time of the January 28, 2006 heart attack who was working for the respondents at the GE Capital office complex in Stamford. He had been hired on January 19, 2006 and had worked only a few days prior to the incident. The claimant's job description included installing copper mains in the ceiling of the second floor of the building, installing hangars, placing the pipes in the hangars and sweating the copper tubing. The parties dispute how strenuous this work was for the claimant. There is also a factual dispute as to how much of the work in a two man crew was performed by the claimant, and how much was performed by his partner. There is also a dispute as to how much walking the claimant had to do during his hours of employment. The parties do not dispute the time and location of the claimant's heart attack.
The trial commissioner found that Gregory D'Onofrio, M.D., is the claimant's treating cardiologist. In a medical report dated April 12, 2006 Dr. D'Onofrio opines that the claimant's myocardial infarction was precipitated by his physical exertion at work. The trial commissioner did not find this opinion persuasive, noting the claimant's history of heavy smoking, being overweight, a history of hypertension, as well as a family history of diabetes and heart disease. The respondents argued that the treating physician's opinion was based on an inaccurate hypothetical question posed to the doctor; which is denied by claimant's counsel; but was a fact found by the trial commissioner.
The respondents' expert witness, Dr. Martin Krauthamer, specifically opined that the claimant's employment was not a substantial factor behind the January 28, 2006 heart attack. Dr. Krauthamer testified that the heart attack was as likely to have occurred at home as at the respondent's work site.
Based on this record, the trial commissioner concluded that the claimant failed to sustain his burden of proving that his work for the respondents was a substantial factor behind his heart attack. He concluded the hypothetical question posed to the treating physician was not accurate, and the factual background as to the claimant's work duties was also not accurate. He also found that the claimant's risk factors such as being a heavy smoker and being overweight contributed to his illness.
The claimant filed a Motion to Correct citing a number of alleged errors in the Finding and Dismissal, including the trial commissioner's findings that Dr. D'Onofrio had treated the claimant during the years prior to the accident, and that the claimant had offered testimony as to his work activities on the day of the accident. The trial commissioner granted these corrections, as well as corrections adding to the record statements as to the timing of the heart attack, the claimant's amount of overtime and his level of fatigue working the GE Capital job. The trial commissioner however, denied corrections sought pertaining to the hypothetical question posed to Dr. D'Onofrio; denied corrections pertaining to the amount of blockage present in the claimant's blood vessels and denied corrections as to the claimant's work activities and the temperature at the job site. The claimant has appealed, asserting that the failure to grant these corrections constitutes grounds to remand the matter.
The claimant's arguments on appeal basically focus on the theory that the trial commissioner failed to credit undisputed evidence which supported finding the claimant suffered a compensable injury. Since the claimant believes the trial commissioner's conclusions were "not reasonably supported by the evidence," Epps v. Beiersdorf, 41 Conn. App. 430 (1996), the claimant believes our precedent inCaraballo v. Specialty Foods Group, Inc./Mosey's Inc., 5082 CRB-1-06-4 (July 3, 2007) would call for the matter to be remanded for new findings.
We outlined a deferential standard of review last year in another case centered over a Motion to Correct. The claimant in Rizzo v. Stanley Works Hand Tools Division, 5106 CRB-6-06-6 (November 21, 2007) appealed from the trial commissioner's decision to grant a Motion to Correct. We enunciated the following standard.
In reviewing this instant decision, our standard of review is deferential to the finder of fact. "As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did."
Daniels v. Alander, 268 Conn. 320, 330 (2004).
Citing McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007) inRizzo, supra, we further pointed out that we must defer to the fact-finding prerogative of the trial commissioner. Our inquiry also must bear in mind it is the claimant's burden to prove their medical condition is causally related to their employment, Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 677-678 (2008).
Our inquiry starts with the corrections sought by the claimant which were denied by the trial commissioner. The commissioner denied a correction as to the temperature on the day of the claimant's injury and corrections as to the nature of the claimant's job activities. We conclude that had these corrections been granted, the ultimate findings by the trial commissioner would not have changed. As a result, even if this evidence was uncontroverted, failure to grant these corrections does not constitute reversible error. Webb v. Pfizer, Inc., 14 Conn. Workers' Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995).
The correction sought by the claimant concerning the hypothetical question posed to Dr. D'Onofrio is more relevant to the central issue of causation of the claimant's myocardial infarction, but we are not convinced the trial commissioner was obligated to grant this correction. Various witnesses for both the claimant and the respondent offered testimony as to the nature of the claimant's work activities prior to the incident; the details of which were not completely consistent. We can infer that based on the totality of the evidence presented at the hearing the trial commissioner concluded this question did not present an accurate description to the expert witness, and we must extend proper deference to such weighing of the evidence. O'Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999) is on point and stands for the proposition that appellate boards must defer to a trier's evaluation of expert testimony. See also Lamontagne v. F F Concrete Corp., 5198 CRB-4-07-2 (February 25, 2008) and Savanella v. O G Industries, Inc., 3396 CRB-4-96-8 (February 3, 1998).
The claimant also argues that it was error for the trial commissioner not to grant the proposed correction that would add evidence to the record that the claimant's arteries had not become progressively more blocked prior to the heart attack. The claimant argues that this evidence would be consistent with finding the heart attack was triggered by events at work. The trial commissioner was presented with evidence from the respondent's expert witness, Dr. Martin Krauthamer, that this was not dispositive of the issue of causation. At his deposition Dr. Krauthamer testified at length concerning the claimant's level of arterial blockage (Respondents' Exhibit 1, pp. 39-40) but maintained his opinion that the claimant's activity at work was not sufficient to cause his heart attack. (Id., pp. 16-17).
Since expert testimony before the trial commissioner discounted the impact of arterial blockage as to the causation of the claimant's heart attack, the trial commissioner could properly disregard the evidence in this proposed correction. The trial commissioner is not required to add facts to the Finding which are not relevant to his ultimate conclusions. D'Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933 (2003).
The claimant also makes what amounts to a generic attack on the judgment of the trial commissioner, asserting in various iterations that "it is apparent the trial commissioner did not recollect or understand the claimant's medical history, or adequately review the medical records in evidence." Claimant's Brief, p. 12. The difficulty with this argument at the appellate level is that the claimant already has filed a Motion to Correct, and had a substantial number of corrections to the record granted so as to conform the Finding and Award to those facts presented on the record the trial commissioner found probative. Our decisions inRizzo, supra, and Wooten v. UTC/Pratt Whitney, 3674 CRB-6-97-9 (May 7, 1999) stand for the proposition that when a party believes a trial commissioner has failed to properly address evidence in the record, a Motion to Correct is the proper vehicle for a party to have the trial commissioner reconsider his ultimate conclusions in light of the factual evidence provided. This enables the trier to evaluate evidence he or she may not have properly considered in the original decision. The claimant herein did exactly that and the trial commissioner did grant a number of corrections; but upon reviewing the proposed corrections, he determined that other prior findings were adequately supported by facts in evidence. We have reviewed the corrections denied by the trial commissioner, and simply do not share the claimant's view that the trial commissioner's conclusions were arbitrary and capricious pursuant to the standards delineated in In re Shaquanna M., 61 Conn. App. 592 (2001). We believe the deferential standard in Fair v. People's Savings Bank, 207 Conn. 535 (1988) must be applied to a trial commissioner's decision on what corrections to grant when considering a Motion to Correct.
The claimant's overall principle in this case appears to be the locus of the injury should be the primary factor in determining compensability, which is inconsistent with Fair, supra. In addition, the claimant's citation of Blakeslee v. Platt Bros. Co., 279 Conn. 239 (2006) does not stand for the proposition that a claimant's pre-existing condition now trumps traditional standards of causation when determining entitlement for an award under Chapter 568.
In Blakeslee, supra, the mechanism of causation of the claimant's injury was uncontested — he had suffered orthopedic injuries at the hands of co-workers who restrained him after an epileptic seizure. The trial commissioner in Blakeslee concluded the original seizure was not work related, and thus noncompensable. He further determined the injuries the claimant suffered after the seizure was a sequelae of the original noncompensable injury and also not compensable. This board affirmed the trial commissioner. The Supreme Court reversed, primarily on the basis of the "mutual benefit" test.
In light of the commissioner's finding that the plaintiff's coworkers had rendered aid to prevent injury not only to the plaintiff, but also to other workers, the only reasonable inference from this fact is that, contrary to the board's conclusion, the coworkers' actions were undertaken to benefit both the plaintiff and the defendant. Given this mutual benefit, the injuries sustained as a result thereof must fall within the scope of the general rule that an injury sustained in the course of employment also arises out of the employment. Id., 250-251. (Emphasis in original).
The claimant's heart attack in this case is more akin to the claimant's original seizure in Blakeslee, supra. We can find no evidence in the record that the claimant's injury was the result of the actions of any co-workers, hence, we find Blakeslee factually distinguishable.
The trial commissioner herein was presented with conflicting expert testimony as to the causation of the claimant's heart attack. Dr. D'Onofrio testified the event was caused by the claimant's employment; Dr. Krauthamer testified the claimant's work was not a substantial factor behind the heart attack, and cited "a portfolio of risk factors that are ominous" (Respondent's Exhibit 1, p. 10). We can infer the trial commissioner found Dr. Krauthamer's opinion more persuasive and that is his prerogative.
We distinguish other cases relied on by the claimant such asBenlock v. New Haven Terminal/Cilco Terminal, 3034 CRB-4-95-4 (April 25, 1997), aff'd, 48 Conn. App. 250 (1998) (per curiam) and Gartrell v. Dept. of Correction, 259 Conn. 29 (2002) as the finder of fact in those cases reached findings of fact supportive of the claimant's argument that his employment was a substantial factor behind his injuries. The claimant did not prevail on the facts in this case.
A trial commissioner is entitled to substantial deference in his evaluation of medical evidence. "When the board reviews a commissioner's determination of causation, it may not substitute its own findings for those of the commissioner. . . . A commissioner's conclusion regarding causation is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law. Dengler, supra, 451." Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007).
If on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier's discretion to credit that opinion above a conflicting diagnosis." Strong v. UTC/Pratt Whitney, 4563 CRB-1-02-8 (August 25, 2003). "We must defer to the factual findings of the trial commissioner in such `dueling expert' cases." (Internal citations omitted) Dellacamera v. Waterbury, 4966 CRB 5-05-6 (June 29, 2006) n. 1; Huertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007).
Solonick v. Electric Boat Corporation, 5170 CRB-2-06-12 (January 9, 2008).
The claimant failed in his burden of persuasion that his heart attack was caused by his employment. Since probative evidence supports the trial commissioner's conclusions herein, we must defer to his judgment. The Finding and Dismissal is affirmed and the appeal is dismissed.
Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.