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Duncan v. Dow Chemical Company

CASE NO. 1442 CRB-2-92-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 7, 1994

KELLY DUNCAN

CLAIMANT-APPELLANT

v.

DOW CHEMICAL COMPANY

EMPLOYER

and

CIGNA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Ellen M. FitzGerald, Esq., Bailey and Wechsler, P.C., 66 Forest Street, Hartford, CT 06105.

The respondents were represented by David W. Schoolcraft, Esq., Trowbridge, Ide, Mansfield & Schoolcraft, P.C., 207 Main Street, Hartford, CT 06106-5314.

This Petition for Review from the June 15, 1992 Finding and Dismissal of the Commissioner for the Second District was heard October 29, 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 Second District Commissioner’s June 15, 1992 Finding and Dismissal. On appeal, the claimant argues that (1) the trial commissioner improperly refused to find facts as set forth in her motion to correct and (2) the commissioner’s dismissal of her claim is legally inconsistent with his findings. We affirm the trial commissioner.

This claim arises out of the claimant’s alleged accidental exposure to chemicals while she was removing latex residue from a degasser tank at the respondent-employer’s Ledyard production facility. The claimant contends that she has suffered total incapacity to work as a result of this workplace episode. The parties presented conflicting evidence regarding the claimant’s exposure to the chemical claimed to have caused her injury and the nature and extent of any injury suffered by the claimant.

Based on the evidence presented, the commissioner found that “on August 12, 1988, a small amount of butadiene gas did leak into the vessel where claimant was working. However, there is no evidence that such gas is toxic or that styrene and nitrogen are toxic. It is further found that the concentration of gas was so small that it would not have affected claimant given the air movers that were placed outside the vessel. It is further found that whatever symptoms claimant treated for on August 31, 1988 and following, are not as a result of the August 12, 1988 incident at the respondent-employer and that therefore she did not suffer an injury which arose during and out of the course of her employment.” Finding and Dismissal, paragraph 83. The commissioner therefore dismissed the claim. This appeal followed.

The claimant first argues that certain of the commissioner’s findings are not supported by the evidence or are based on unreasonable inferences from the evidence. We do not agree.

Each of the challenged findings is either directly supported by the evidence or based on a reasonable inference drawn from the evidence before the trial commissioner. Matters pertaining to the credibility of witnesses and the weight to be accorded their testimony are the exclusive province of the trial commissioner, not subject to our review on appeal. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Fletcher v. UTC/Pratt & Whitney, 11 Conn. Workers’ Comp. Rev. Op. 182, 1322 CRD-8-91-10 (1993).

The claimant next contends that the trial commissioner failed to address evidence presented regarding an alternate theory of liability. The respondents contend that this theory of liability was not raised in the proceedings before the trial commissioner.

The claimant proceeded before the trial commissioner largely on the theory that the workplace incident caused organic brain syndrome which resulted in claimant’s total incapacity to work. The claimant’s proposed findings of fact and conclusions of law submitted to the trial commissioner during the proceedings below give little attention to a claimed post-traumatic stress disorder, the injury which she now claims the trial commissioner failed to address in his findings. See Claimant’s Proposed Finding and Award, paragraphs 24 and 31; compare Claimant’s Proposed Finding and Award, paragraphs 37-38, 40 and 81. The claimant’s trial memorandum accompanying her proposed findings and award, however, notes both diagnoses and points out that expert agreement on the specific diagnosis is not critical so long as the symptoms and the resulting disability, however identified by the experts, are attributable to the workplace incident. See Claimant’s Brief, pp. 92-95.

Yet, we need not determine whether the claimant failed to raise the issue before the trial commissioner to preclude our review. See Practice Book Sec. 4185; Trantolo v. Trantolo & Trantolo, P.C., 8 Conn. Workers’ Comp. Rev. Op. 69, 71, 823 CRD-6-89-2 (1990). The issue of the claimant’s alleged disability, however described, was clearly and comprehensively determined by the trial commissioner in his Finding and Dismissal. In Paragraph 83 of that Finding and Dismissal, the trial commissioner concluded that “whatever symptoms claimant treated for on August 31, 1988 and following, are not as a result of the August 12, 1988 incident at the respondent-employer.” (Emphasis added.) Additionally, the issue of a post-traumatic stress disorder was raised in the claimant’s motion to correct and rejected by the commissioner in his ruling on that motion. This is not a case where the commissioner failed to make a finding regarding medical opinions as to causality; rather, the commissioner reached conclusions with which the claimant does not agree. Under such circumstances, we must affirm the conclusion reached where, as here, it does not result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from these facts. Beninato v. Specialty Framing, Inc., 11 Conn. Workers’ Comp. Rev. Op. 200, 1306 CRD-8-91-9 (1993).

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

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

Workers’ Compensation Commission

Page last revised: February 5, 2016

Page URL: http://wcc.state.ct.us/crb/1994/1442crb.htm

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