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Kerins v. Johnson Controls

CASE NO. 1419 CRB-8-92-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 3, 1994

JOHN KERINS

CLAIMANT-APPELLANT

v.

JOHNSON CONTROLS

EMPLOYER

and

AMERICAN MOTORISTS INS. CO.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Herbert Watstein, Esq., Watstein & Watstein, 685 Middle Street, P.O. Box 1360, Bristol, CT 06011-1360.

The respondents were represented by Polly L. Orenstein, Esq., 127 Washington Avenue, P.O. Box 35, North Haven, CT 06473.

The Second Injury Fund did not appear before the Compensation Review Board.

This Petition for Review from the April 27, 1992 Finding and Award of the Commissioner for the Eighth District was heard March 26, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the Eighth District Commissioner’s April 27, 1992 Finding and Award. In this appeal, the claimant challenges the trial commissioner’s determination that (1) he reached maximum medical improvement on May 18, 1990 and (2) that he sustained a fifteen percent permanent partial disability of the low back.1 We affirm the trial commissioner.

The determination of the maximum medical improvement date and the extent of an injured worker’s permanent disability are within the trial commissioner’s province as the trier of the facts. Duso v. Emhart Corporation, 10 Conn. Workers’ Comp. Rev. Op. 146, 1175 CRD-6-91-2 (1992); Delcarmine v. Fire Prevention Service, Inc., 5 Conn. Workers’ Comp. Rev. Op. 123, 311 CRD-7-84 (1988). Such findings and conclusions will not be disturbed on appeal unless they are not supported by the evidence, are based on unreasonable or impermissible factual inferences or are contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Duso v. Emhart Corporation, supra.

The evidence before the trial commissioner was in conflict regarding both findings challenged by the claimant on appeal. Medical opinion evidence as to when the claimant reached maximum medical improvement and the extent of the claimant’s permanent disability had divergent ranges. The claimant’s arguments to the contrary notwithstanding, the commissioner’s findings were amply supported by the evidence.

Dr. Robert Berland opined that the claimant suffered a fifteen percent permanent partial disability, and the trial commissioner apparently relied on this evidence in reaching his conclusion. The commissioner was not bound to accept the permanency rating of the claimant’s treating physician, as matters regarding the weight and credibility of a witness’s testimony are the exclusive province of the trial commissioner. See Miller v. Kirshner, 225 Conn. 185, 198 (1993); State v. Robinson, 213 Conn. 243, 256 (1989). Additionally, Dr. David Bomar reported, on May 18, 1990, that he did not foresee any change in the claimant’s condition and opined that the claimant might be able to do some type of light duty work. This evidence supported the commissioner’s finding with respect to maximum medical improvement. Wrenn v. Connecticut Brass Co., 96 Conn. 35, 38 (1921).

The challenged factual determinations were therefore dependent on the weight and credibility accorded the evidence. We will not disturb conclusions which are so based. Neal v. UTC/Pratt & Whitney, 10 Conn. Workers’ Comp. Rev. Op. 163, 1199 CRD-8-91-3 (1992).

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

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

1 On November 12, 1993, subsequent to oral argument in this matter, the claimant-appellant withdrew his challenge to another finding made by the commissioner in his Finding and Award. We therefore confine our analysis to those issues which the claimant continues to pursue in this appeal. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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