CASE NO. 1160 CRD-7-91-1 CASE NO. 1240 CRD-7-91-5Workers’ Compensation Commission
MAY 8, 1992
The claimant was represented by Stephen M. Feinstein, Esq., Feinstein Hermann.
The respondent was represented by Christopher A. Kristoff, Esq., Law Offices of Lawrence A. Kristoff.
The Second Injury Fund was represented by Avery Brown, Esq., Assistant Attorney General. (The Fund did not appear or file a brief for oral argument.)
These Petitions for Review from the December 26, 1990 Finding and Award and the May 23, 1991 Finding and Order of the Commissioner for the Seventh District were consolidated and heard November 22, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Gerald Kolinsky and Donald H. Doyle.
OPINION
JOHN ARCUDI, CHAIRMAN.
Two appeals have been consolidated in this proceeding. The first is the employer respondent’s Appeal from the Seventh District December 26, 1990 Finding and Award. The second is an appeal by the claimant from a May 23, 1991 Finding and Order.
Claimant sustained a compensable injury to his lumbar spine on August 25, 1989 while changing an automobile tire. At time of the injury, the employer was in violation of the law as it was uninsured for workers’ compensation liability. Claimant saw Dr. John Harness, a general practitioner, August 30, 1989 and September 2, 1989 for his back complaints, but he continued to work. On September 3, 1989 he suffered a severe bout of back pain while changing a tire at work. The employer then drove him to St. Joseph Medical Center for treatment in the emergency room. Subsequently, claimant was out of work for three weeks due to the back condition. Respondent paid the bills for Dr. Harness’ medical services rendered to the claimant.
On March 13, 1990, because the back pain and the sciatica symptoms continued, claimant consulted an orthopedic surgeon, Dr. Joseph M. D’Amico. Dr. D’Amico started claimant on conservative treatment but then referred him to Dr. Gerard A. Sava, a neurosurgeon. Dr. Sava concurred with Dr. D’Amico’s diagnosis of a ruptured lumbar disc and recommendation of surgery.
The only issue presented on the employer’s appeal is the commissioner’s finding that Drs. D’Amico and Sava were authorized treating physicians. Section 31-294 provides: “The commissioner may, without hearing at the request of the employer or the injured employee, when good reason exists, or on his own motion, authorize or direct a change of such physician or surgeon or such hospital or nursing service.” Dr. Harness had recommended that claimant consult an orthopedist. Even without that fact the ruling that Drs. D’Amico and Sava were treating physicians was well within the commissioner’s statutory authority as defined in Sec. 31-294. On appeal we may only determine whether the conclusion was so unreasonable as to justify our interference. Bailey v. Mitchell, 113 Conn. 721 (1931). Dr. Harness’s advice that claimant see an orthopedic surgeon was noted in the doctor’s deposition and the claimant’s own testimony. See Deposition of Dr. John Harness, September 12, 1990, Defendant’s Exhibit 1 at 22, and December 11, 1990 TR at 18-19.
As the conclusion was supported by the evidence presented and was not contrary to law, we affirm the holding that the two specialists were authorized treaters. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). See also Basney v. Sachs, 132 Conn. 207
(1945); Greiger v. Leake Nelson, 9 Conn. Workers’ Comp. Rev. Op. 17, 890 CRD-4-89-6 (1991); McConnell v. Hewitt Assoc., 8 Conn. Workers’ Comp. Rev. Op. 32, 764 CRD-7-88-8 (1990); Todd v. Jazlowiecki, 6 Conn. Workers’ Comp. Rev. Op. 9, 493 CRD-6-86
(1988); Adams v. Stop Shop, 4 Conn. Workers’ Comp. Rev. Op. 80, 380 CRD-2-85 (1987); Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (1984).
In the Seventh District May 23, 1991 Finding and Order the commissioner found claimant was disabled from January 7, 1991 through May 17, 1991. Claimant’s appeal holds that he should have been found to be totally disabled from June 18, 1990 to January 7, 1991 also. This is an attack on the commissioner’s factual finding. Such a determination is for the trier to make. Sgambato v. Simkins Industries, Inc., 8 Conn. Workers’ Comp. Rev. Op. 131, 825 CRD-3-89-2 (1990) citing Damelio v. Anaconda, Inc., 4 Conn. Workers’ Comp. Rev. Op. 31, 281 CRD-5-83 (1987), no error, 15 Conn. App. 805 (1988) (per curiam), cert. denied, 208 Conn. 814 (1988). The determination is dependent upon the weight and credibility to be accorded the evidence presented. Rivera v. Guida’s Dairy, 167 Conn. 524 (1975) (per curiam). Here the only evidence on claimant’s inability to work during the period in question was his own testimony.
The claimant had worked for some time after the 1989 injury. It was within the trier’s province, considering claimant’s own testimony and that of the doctors, to determine the periods of total disability. As there was evidence to support the conclusion, we will not disturb it.
We therefore affirm both the December 26, 1990 and the May 23, 1991 decisions and dismiss the appeals.
Commissioners Gerald Kolinsky and Donald H. Doyle concur.