Seeger v. Borough of Naugatuck

The claimant was represented by Peter Rotatori III, Esq., 2 Pomperaug Office Park, Southbury, CT 06488.

The respondents were represented by Eric Brown, Esq., Secor, Cassidy & McPartland, P.C., 41 Church St., P. O. Box 2818, Waterbury, CT 06723-2818.

The Second Injury Fund was not represented at oral argument. Notice sent to Richard Hines, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 14, 1994 Finding and Award of the Commissioner acting for the Fifth District was heard September 22, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the November 14, 1994 Finding and Award of the Commissioner acting for the Fifth District. The respondents argue on appeal that there was insufficient evidence to support the trial commissioner’s finding that the claimant’s medical condition was related to his employment. We affirm the trial commissioner’s decision.

The trial commissioner found the following facts: the claimant was employed by the police department of the Borough of Naugatuck as a patrolman for approximately thirty years. The last day of his active employment was September 23, 1987, although he did not retire until September 23, 1988. He suffered from lymphedema and swelling of the legs at the time, a condition first documented in 1979. The police chief, Joseph Summa, became aware of the claimant’s condition during the 1980s and discussed it with him several times. The swelling worsened during the two or three years prior to 1987.

The claimant’s treating physician, Dr. Yu, opined that the claimant had endured chronic lymphedema of both lower extremities since 1979, and that his job as a patrolman at least aggravated his condition and made it worse. He diagnosed the claimant as totally and permanently disabled due to severe edema of both legs. Dr. Kwass, a vascular surgeon who examined the claimant at the trial commissioner’s request, opined that the etiology of the claimant’s condition was uncertain. He noted, however, that there is a clear connection between work that requires an individual to stand or sit for any length of time and the extent of swelling related to such a condition. Dr. Kwass opined that the claimant had a fifty percent permanent partial disability of each lower leg, although the commissioner noted a lack of evidence that maximum medical improvement had been reached. The claimant died on September 7, 1992 of a heart attack, leaving a widow.

The trial commissioner concluded that the claimant’s date of injury was September 23, 1987, his last day of employment as a patrolman, and that his notice of claim was timely. He further concluded that the claimant had been diagnosed with lymphedema, and that his total disability from the day after his retirement through the week preceding his death was caused by work-related aggravation of his lymphedema. He also concluded that the claimant’s permanent partial disability award did not vest, as the claimant never reached maximum medical improvement. Therefore, the respondent Borough of Naugatuck was ordered to pay total disability benefits for the period between the claimant’s retirement and September 2, 1992. The respondents have appealed.

The respondents first argue that the trial commissioner should have granted their Motion to Correct. The commissioner’s Finding #12 states that “Dr. Kwass opined that the etiology of the Claimant’s condition is not certain and probably cannot be completely determined that the Claimant’s employment was not causative and that the Claimant’s Laennec’s cirrhosis could be a contributing factor.” The respondents unsuccessfully sought to revise that finding to reflect the doctor’s statement, “I do not think the patient’s employment was causative.” (See Report of April 24, 1989, Respondent’s Exhibit 2).

The power and duty of determining the facts rests on the trial commissioner, who is the finder of fact. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). This authority entitles him to weigh the evidence and the credibility of witnesses. His factual findings cannot be disturbed on review unless they lack a basis in the evidence or unless the findings fail to include undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). Furthermore, where suggested factual corrections would not alter the outcome of a commissioner’s decision, we will uphold his or her refusal to grant a Motion to Correct. Leroux v. Lenders Bagel Bakery, 2110 CRB-3-94-7 (decided Nov. 28, 1995); Knoblaugh, supra.

The medical report cited by the respondents does not offer a strong opinion either way as to causation. Dr. Kwass stated that “[t]he etiology is not certain and probably cannot be completely determined. Most lymphadema is idiopathic [having an unknown cause]. This patient does have evidence of Laennec’s Cirrhosis and that could be a contributing factor as well. I do not think that the patient’s employment was causative. It is clear, however, that continued employment is not feasible in view of the massive lymphadema which is present.” Given the trial commissioner’s authority to determine the meaning of this medical report, we cannot say that it was erroneous for him to deny the Motion to Correct. This report can be reasonably interpreted as expressing no definite opinion on causation.

The respondents main argument is that the claimant did not meet his burden of proving that his disability was causally related to his employment with the police department. Whether an injury arose out of and in the course of employment is a question of fact. Fair, supra, 541; Leroux, supra. The causal relation between an injury and a claimant’s employment may be established by the direct opinion of a physician, as the claimant attempted to do in this case. See Struckman v. Burns, 205 Conn. 542, 554 (1987). “Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. . . . Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” Id., 554-55.

Here, the trial commissioner largely relied on the medical report of Dr. Yu, who stated that the claimant’s job as a patrolman “requiring excessive walking constantly definitely aggravated his condition.” (Report of Jan. 20, 1994, Claimant’s Exhibit E). We have held that the substantial aggravation of a latent or pre-existing condition by employment activity is sufficient to establish compensability of the injury. See Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 29, 1699 CRB-8-93-4 (Nov. 7, 1994); see also Han v. Amgraph Packaging, 2074 CRB-2-94-6 (decided Sept. 26, 1995). This case falls within that category. Together with the testimony of the witnesses, the medical evidence in this case is sufficient to support the trial commissioner’s conclusion that the claimant’s disability was related to his employment.