MARCH 1, 2006

This Petition for Review from the March 24, 2005 Finding and Award of the Commissioner acting for the Third District was heard September 23, 2005 before the Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

The claimant was represented by Paul James Garlasco, Esq. 83 Park Lane, New Milford, CT 06776.

The respondents were represented by Lawrence Pellett, Esq., McGann, Bartlett Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.


In the instant matter, the respondents appeal the Finding and Award of the commissioner determining that the claimant, Erin Arnott, suffered a compensable work-related injury to her left elbow. Although they do not challenge the compensability of her right elbow injury, the appeal is based on the theory that the evidence that the other elbow was injured by way of the same repetitive stress factors was “inconsistent” in some fashion.

The facts are not in dispute. The claimant began work as a line cook at the Hot Tomatoes restaurant in October 2001. Findings, ¶ 1. She was responsible for sautéing about 100 meals per night. Findings, ¶ 2. The pans each weighed five pounds and she also had to use tongs to remove cast iron burners weighing in excess of 50 pounds. October 14, 2004 Transcript, pp. 14-20. She testified prior to her employment at Hot Tomatoes she did not experience pain in either one of her elbows. Findings, ¶ 3. She says pain developed in her right elbow in March 2002 and in her left elbow in April 2002. Findings, ¶ 5.

The claimant first treated with her family physician, Dr. Z. Michael Toweh. He referred her to an orthopedic doctor, Dr. Daniel Fish, who examined her on April 15, 2002. At that point he identified right elbow pain due to medial epicondylitis. Claimant’s Exhibit B. The respondents accepted the right elbow as a compensable injury. Findings, ¶ 9. Claimant stopped working at Hot Tomatoes on May 12, 2002 due to the pain.[1] October 14, 2004 Transcript, p. 24. On July 9, 2002, Dr. Fish examined the claimant again, and determined she suffered “some significant medial left elbow pain” due to “left elbow medial epicondylitis.” Findings, ¶¶ 10-11.

During this period, the claimant underwent an EMG test with Dr. Ylagan on May 16, 2002. He issued a report on December 26, 2002 that the EMG tests revealed the claimant had a left ulnar nerve entrapment. Findings, ¶ 15. She also sought a second opinion from another orthopedic doctor, Dr. Keith Penney in October 2003. On November 12, 2003 Dr. Penney issued a report recommending decompression and transposition of the left ulnar nerve to address the elbow pain. Findings, ¶ 17.

The respondents had the claimant examined by their physician, Dr. Richard A. Bernstein on or about February 13, 2003 and again on or about March 18, 2004. Dr. Bernstein determined that while surgery on the left elbow was not unreasonable, he was of the opinion the left elbow injury was not related to her employment at Hot Tomatoes. Claimant’s Exhibit E.

Apart from expert medical testimony, the claimant’s father and one of her former employers testified that she had suffered a significant amount of pain in both elbows commencing with her employment at Hot Tomatoes. Findings, ¶¶ 18-20.

The trial commissioner decided to credit the testimony of Dr. Fish, who had opined on August 5, 2002 that the pain in the claimant’s left elbow was causally related to her employment at Hot Tomatoes, and discount the opinion of Dr. Bernstein. Findings, ¶¶ 21, A B.

The respondents filed a Motion to Correct, which was granted in part and denied in part. The respondents appealed, with the central argument presented as the claimant’s medical evidence is “inconsistent” in that some physicians did not address issues related to the left elbow and that the commissioner should have granted those portions of the Motion to Correct that adopted Dr. Bernstein’s conclusions as to causation.

The argument advanced herein essentially seeks to have the CRB make its own evaluation of the medical evidence presented in this matter and substitute its conclusion for the evaluation made by the trial commissioner. For the findings of a trial commissioner to be overturned they must be without evidentiary support, contrary to the law, or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care,248 Conn. 379 (1999) and Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The trial commissioner specifically found evidence for the finding and award in the opinions of Dr. Fish that were in his correspondence and treatment notes. Dr. Fish was quite consistent, and specifically found that “both of her elbows are related to her repetitive duties as a chef” (Claimant’s Exhibit B, August 5, 2002 letter) her left elbow injury was “most likely caused by her employment as a chef” (Claimant’s Exhibit B, October 14, 2002 letter) and “I believe this is related to a Worker’s Compensation type injury” (Claimant’s Exhibit B, January 7, 2003 notes).

This evidence clearly satisfied the test in Struckman v.Burns, 205 Conn. 542, 555-56 (1987) in that Dr. Fish expressed his opinions as to causation within a reasonable medical probability. Where the medical opinions are in conflict, the trial commissioner’s determination must stand so long as there is evidence to support it. Carney-Bastrzycki v. Hospital forSpecial Care, 4722 CRB-6-03-9 (September 3, 2004).[2]

The respondents raise the issue that certain physicians did not evaluate the left elbow of the claimant and that she raised the issue of left elbow pain some time after the onset of right elbow pain. This according to the respondents constitutes “voluminous” evidence that the left elbow was not a compensable injury. These matters go to the weight of the evidence before the trial commissioner. Goldberg v. Ames Department Stores,4160 CRB-1-99-2 (December 19, 2000). In this sense “weight” means th qualitative value of the evidence presented. The trial commissioner decided the claimant presented the superior qualitative evidence. “As the finder of fact, the trier has the sole authority to decide what evidence is reliable and what is not. . . .” Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004).

The Commissioner’s Finding and Award of March 24, 2005, as corrected by the Commissioner on April 22, 2005, is herein upheld.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

[1] Dr. Fish performed surgery on the right elbow on June 14, 2002.
[2] There actually is some consistency between Dr. Fish and Dr. Bernstein’s opinions. Both consider the possibility that the left elbow injury could be partially related to a prior employer. See Dr. Fish’s October 14, 2002 letter, Claimant’s Exhibit B and Dr. Bernstein’s February 13, 2003 letter, Claimant’s Exhibit E, “. . . the symptoms in the left arm, if at all considered compensable, would be related to the entire duration of exposure as her work in the culinary industry. . . .” The trial commissioner specifically addressed this issue in his Finding and Award by suggesting the respondents’ seek apportionment from other employers.