5385 CRB-8-08-10 (2009). Carroll v. Flattery's Landscaping, Inc.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5385 CRB-8-08-10 (2009). Carroll v. Flattery's Landscaping, Inc CASE NO. 5385 CRB-8-08-10COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSIONSEPTEMBER 24, 2009JAMES CARROLL CLAIMANT-APPELLANT v. FLATTERY'S LANDSCAPING, INC. EMPLOYER and NORTH RIVER INSURANCE CO. CRUM & FORESTER INSURER RESPONDENTS-APPELLEESAPPEARANCES: The claimant appeared pro se. The respondents were represented by Frank A. May, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087. This Petition for Review from the October 8, 2008 Finding and Dismissal of the Commissioner acting for the Eighth District was heard April 24, 2009 before a Compensation Review Board panel consisting of Commissioners Randy L. Cohen, Christine L. Engel and Daniel E. Dilzer.OPINION RANDY L. COHEN, COMMISSIONER. The claimant in this matter has appealed the Finding and Dismissal of his claim that his June 20, 2006 cervical spine surgery was due to a compensable injury; as well as seeking additional permanency benefits and temporary total disability benefits due to the surgery. We have reviewed the claimant's arguments and determine that the trial commissioner herein relied on medical witnesses whom he found credible and persuasive. Since an appellate panel cannot retry such a factual determination, we uphold the Finding and Dismissal and dismiss this appeal.We note that the claimant has been before this panel on two prior occasions dealing with issues emanating from his compensable November 28, 1995 injury; Carroll v. Flattery's Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003) ("Carroll I") and Carroll v. Flattery's Landscaping, Inc., 4839 CRB-1-04-8 (June 29, 2005) ("Carroll II"). The trial commissioner found the following facts concerning this claim. The November 28, 1995 incident caused the claimant to suffer injuries when a truck fell twice off the jack stand and landed on the claimant. The trial commissioner noted that a Voluntary Agreement was approved by the Commission on September 2, 1999 which established a 7.5% permanent partial disability rating for the cervical spine. At the April 10, 2008 hearing for the present claim the trial commissioner found the claimant testified that he had been treating once a month with a chiropractor for about 9 years prior to the compensable injury. He also testified to two 1989 injuries at ski slopes and that in July 1990 he pulled his "left neck and shoulder." He informed his chiropractor, Dr. Richard Caskey, of a stiff neck in September 1991. Dr. Caskey's notes document the claimant had numerous complaints of left shoulder pain and a stiff neck prior to the compensable injury, as well as numerous complaints of poor sleep. The claimant presented to Dr. Andrew Wakefield on June 8, 2006. On June 20, 2006 the claimant underwent anterior cervical discectomy and fusion at C5-6 and C6-7. Dr. Wakefield opined on May 23, 2007...