CASE NO. 44-CRD-7-80Workers’ Compensation Commission
NOVEMBER 10, 1981
The claimant-appellee was represented by James L. Rapaport, Esq.
The respondent-appellant was represented by Madelyn M. DeMatteo, Esq.
This Petition for Review from the November 24, 1980 Decision of the Commissioner for the Seventh District was argued May 22, 1981 before a Compensation Review Division panel consisting of Commissioners John Arcudi, A. Paul Berte’ and Andrew P. Denuzze.
John Arcudi, Chairman, A. Paul Berte’, Commissioner, Andrew P. Denuzze, Commissioner
FINDING AND AWARD
The Finding and Award of the Commissioner is affirmed and adopted as the Finding and Award of this Division.
However, the Commissioner’s decision only awarded benefits from July 29, 1976 to January 8, 1981. The matter is remanded to the Commissioner for further hearings concerning claimant’s disability status after January 8, 1981.
OPINION
Claimant, William Moore, received three different injuries arising out of and in the course of his employment with the respondent Southern New England Telephone Company. On August 30, 1967 he fell from a telephone pole sixteen or seventeen feet to the ground injuring the sacral and coccygeal areas of his back. A fall through a trapdoor in a customer’s home occurred October 13, 1971 causing claimant’s back and ribs to be injured. Finally, on July 29, 1976 claimant fell down a flight of stairs at the employer’s Danbury office and sustained injuries to his knee, back, arm and leg.
The Commissioners found that the July 29, 1976 incident combined with the two prior accidents had caused cervical and lumbar radiculitis totally disabling the claimant from July 29, 1976 to the date of his decision January 8, 1981. The Commissioner’s findings were based on the testimony of the claimant and his medical witness, Dr. Robert John DeLorenzo, Assistant Professor of Neurology at the Yale University School of Medicine. The respondent-appellant agrees that Dr. DeLorenzo’s testimony supports such findings, but it argues that the doctor’s medical conclusions were wrong and based on false premises.
Respondent’s brief holds that no other doctor made a diagnosis of cervical and lumbar radiculopathy until Dr. DeLorenzo did so in a report of June 22, 1978; it then argues that uncontroverted facts show that the cervical symptoms came on spontaneously and not as a result of the accidents.
Actually, Dr. Jesse S. Manlapaz made a diagnosis of cervical radiculitis in the July 14, 1971 New Milford Hospital report and another diagnosis of chronic lumbar radiculitis in the August 31, 1976 discharge summary from the same hospital. It is true that Dr. Ned M. Shutkin, a New Haven orthopedic surgeon, testified on behalf of the respondent that he found no basis for Dr. Manlapaz’s diagnosis of July 14, 1971 and August 31, 1976, but the mere fact that respondent’s medical witness so testified hardly qualifies Dr. Shutkin’s conclusions as uncontroverted facts.
In part of his testimony Dr. DeLorenzo mistakenly referred to the August 30, 1967 injury as a fractured coccyx. Respondent’s counsel quite properly seized upon this error in her cross examination of the doctor. She used it in an attempt to discredit the validity of his entire testimony. However, the doctor testified that it would make no difference in his conclusions whether the 1967 injury was a bruised coccyx rather than a fractured coccyx. The doctors theory expounded in further testimony was that a fifteen to twenty feet fall from a pole so traumatized the entire spine that it helped cause the sequelae from which the claimant was then suffering. The Commissioner was apparently persuaded by this testimony as his findings were based on it.
This panel, unless it orders other evidence to be heard, in reviewing the findings of the Commissioner may not retry the facts, ADZIMA v. UAC/NORDEN DIVISION, 177 Conn. 107 (1979). “The Commissioner’s ultimate conclusions are tested by the subordinate facts found, and they stand unless they result from an incorrect application of the law to those facts or from an inference illegally or unreasonably drawn from them,” BALKUS v. TERRY STEAM TURBINE CO., 167 Conn. 170 (1974). We find that Dr. DeLorenzo’s testimony provided ample basis for the Commissioner’s conclusions, and we do not agree that his expert testimony was based on unreasonable grounds.
Appellant’s final point concerns the compensation rate which should be payable to claimant. The Commissioner ordered payment of weekly benefits at the compensation rate deriving from the July 29, 1976 accident. Respondent argues that even if Dr. DeLorenzo’s testimony be accepted, it was the 1967 accident which set in motion the events leading to claimant’s temporary total disability. The 1971 and 1976 incidents, according to this reasoning, only aggravated the condition. Therefore the 1967 compensation rate should prevail.
This argument assumes too much. The Commissioner’s finding supported by evidence as shown above was that the 1976 accident combined with the prior injuries caused temporary total disability. The 1976 accident thus was a substantial factor, a proximate cause of the disability. The Commissioner did not find that the disability arose from the 1967 incident alone. As the 1976 injury was a discrete compensable event contributing to the disability the Commissioner was correct in ordering payment at the 1976 rate.
The Appeal is dismissed and the decision of the Commissioner is affirmed.