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Maylott v. Paul Williams d/b/a Williams Engineering et al.

CASE NO. 1353 CRD-6-91-12

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

DECEMBER 23, 1993

DONALD MAYLOTT

CLAIMANT-APPELLANT

v.

PAUL WILLIAMS d/b/a WILLIAMS ENGINEERING

EMPLOYER

and

U.S.F. & G.

INSURER

RESPONDENTS-APPELLEES

and

SUPERIOR PAINT AND WALLPAPER

EMPLOYER

and

AETNA LIFE & CASUALTY

INSURER

RESPONDENTS-APPELLEES

and

BIG D CARPETS

EMPLOYER

and

AMERICAN POLICYHOLDERS

INSURER

RESPONDENTS-APPELLEES

and

KITTREDGE EQUIPMENT COMPANY, INC.

EMPLOYER

and

HOME INSURANCE COMPANY

INSURER

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Mark E . Blakeman, Esq., Michelson, Kane, Royster & Barger, 93 Oak Street, Hartford, CT 06106.

The respondent Paul Williams d/b/a Williams Engineering was represented by Louis W. Flynn, Jr., Esq., 99 Pratt Street, Suite 626, Hartford, CT 06103.

The respondent U.S.F. & G. was represented by Sandra McGarran (Senior Claims Adjuster), Spring Street, Wethersfield, CT 06106 who did not file a brief or appear at oral argument.

The respondents Superior Paint and Wallpaper and its insurer were represented by James L. Pomeranz, Esq., Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The respondents Big D Carpets and its insurer were represented by Jeremy D. Booty, Esq. and David A. Kelly, Esq., Monstream and May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents Kittredge Equipment Company, Inc. and its insurer were represented try Scott Wilson Williams, Esq., Maher and Williams, P.O. Box 269, Bridgeport, CT 06601.

The Second Injury Fund was represented by Howard Levine, Esq. and Robin Wilson, Esq., Assistant Attorneys General, 55 Elm Street, P.O. Box 1200, Hartford, CT 06101-0120 who did not file a brief or appear at oral argument.

This Petition for Review From the December 6, 1991 Finding and Dismissal of the Commissioner At Large acting for the Sixth District was heard February 26, 1993 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, George A. Waldron and Donald H. Doyle, Jr.

OPINION

JOHN A . ARCUDI, COMMISSIONER. Claimant appeals the Sixth District’s denial of his claim. The trial commissioner concluded that the claimant had not sustained the burden of proof that his June 24, 1984 work-related fall was the cause of the left hip replacement in the spring of 1990.

Claimant challenges the factual findings and conclusions of the commissioner. The power and duty of determining the facts rests with the commissioner, the trier of facts. Fair v. People’s Savings Bank, 207 Conn. 535, 538-42 (1988). Moreover, the conclusions of a trial commissioner “must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citation omitted). Id. 539; Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). The evidence was in conflict as to the relationship of the 1984 injury to the subsequent hip condition. Thus, the conclusions reached below were dependent on the weight and credibility accorded the evidence. Because there was evidence to support the Commissioner’s findings and his ultimate conclusions, they cannot be disturbed on appeal.

Also challenged is the commissioner’s granting of continuances to respondent Williams Engineering and the failure to close the evidence at the conclusion of the April 22, 1991 hearing. “When reviewing the grant or denial of a motion for a continuance this [tribunal] will only find error if a clear abuse of the trial [commissioner’s] discretion is shown.” State v. Best, 171 Conn. 487, 492 (1976); Dekley Corporation v. Commercial Equipment Sales Inc., 38 Conn. Sup. 543, 544 (1982). No such abuse of discretion can be found here.

Finally, the claimant argues against the admissibility of Dr. Allan Goodman’s deposition transcript. He criticizes Dr. Goodman’s qualifications, and the basis of his opinions. Such objections, however, go to the weight, not the admissibility of the evidence. See Wray v. Fairfield Amusement Co., 126 Conn. 221, 224 (1940); Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407, 430-31, cert. denied., 201 Conn. 811 (1986). Claimant’s hearsay objection is equally without merit. The claimant had notice of the deposition, was present at its taking and exercised his right to cross-examine. Under such circumstances, both statute, General Statutes Sec. 52-149a, and case law, Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974), permit the use of a medical expert’s deposition testimony in a workers’ compensation proceeding. If the claimant wished direct testimony from Dr. Goodman, he was free to call the doctor as a witness. He chose not to do so and cannot be heard to complain on appeal. See Diogostine v. Somers Thin Strip, 3 Conn. Workers’ Comp. Rev. Op. 139, 140, 282 CRD-5-83 (1987).

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

Workers’ Compensation Commission

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