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Ettienne-Modeste v. Town of Bloomfield

CASE NO. 1789 CRB-1-93-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 26, 1995

THERESA ETTIENNE-MODESTE

CLAIMANT-APPELLANT

v.

TOWN OF BLOOMFIELD

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondents were represented by Richard L. Aiken, Jr., Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the July 30, 1993 Finding and Dismissal of the Commissioner acting for the First District was heard June 24, 1994 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, Nancy A. Brouillet and Michael S. Miles.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The pro se claimant, Theresa Ettienne-Modeste, has petitioned for review from the July 30, 1993 Finding and Dismissal of the Commissioner for the First District. She is appealing from the commissioner’s decision that her continuing disability was not caused by the accepted injury that occurred on August 1, 1986. After careful review, we have concluded that the commissioner’s decision be affirmed.1

The commissioner found that the claimant sustained an injury to her right arm on August 1, 1986, while at work. In a voluntary agreement approved on May 13, 1988, the parties stipulated that the injury caused a five percent permanent partial disability to the claimant’s right arm. The claimant, whose job involved lifting handicapped children, continued to work for the respondent employer until February 6, 1987, when she refused offers for two jobs that the commissioner found to be within her lifting restrictions.

The claimant alleges that she continues to be disabled because of her original injury. Although the commissioner found that she originally complained only of right arm pain, he noted that by February 1992 her complaints of pain extended from her neck to her right foot. The commissioner concluded that there was no credible evidence that any of these symptoms “other than those affecting the right arm, shoulder, [and] sub-scapular area” were caused by the compensable injury, and dismissed the claim for all benefits not directly attributable to the right arm injury. The claimant appeals from that decision.

The claimant raises several specific arguments in her brief, all of which challenge the evidentiary basis for the commissioner’s Finding and Dismissal. She objects to the commissioner’s failure to mention the testimony of certain witnesses. She claims that she originally complained of more than pain to her right arm, and objects to the implication that some of her additional symptoms were not mentioned until 1992. Most importantly, she cites the existence of numerous medical reports relating her back pain to her 1986 injury.

When a person makes a claim under the Workers’ Compensation Act, and the parties are unable to resolve the claim by mutual agreement, the commissioner acting for the district where the claim is brought usually holds formal hearings to determine the facts of the claim. Both parties are allowed to present medical evidence and testimony at those hearings, and the commissioner decides which evidence and testimony is the most believable. Fair v. People’s Savings Bank, 207 Conn. 535, 538-41 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-19 (1979). Once the commissioner finds specific facts, the Compensation Review Board, as an appellate body, is bound by those factual findings if there is evidence in the record to support them. We do not retry the facts or hear further evidence. Adzima, supra, 118. Similarly, the conclusions drawn by the commissioner from the facts found 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.” Fair, supra, 539.

Taking into consideration these legal principles, there is no doubt that the commissioner was within his authority when he did not cite the testimony of the claimant’s witnesses in his findings. He was entitled to decide whether or not the testimony was credible. The commissioner simply chose not to rely on the claimant’s witnesses. This Board has no authority to change who the commissioner believed. Adzima, supra, 118; see also Phelan v. Benson, 1583 CRB-3-92-12 (decided Dec. 20, 1994).

Similarly, the commissioner was entitled to decide which medical evidence to accept in this claim. Although there were doctors’ reports in evidence that supported the claimant’s contentions, there were also reports submitted against a finding of further disability. Dr. Krompinger indicated in a report dated November 22, 1991 that “in the best medical probability this patient’s back complaints are not related to her employment from the injury in August of 1986.” Other reports, including one by Dr. Fisher, supported this conclusion as well. The commissioner made a credibility determination in the face of conflicting evidence, and we cannot draw a different conclusion here.

The claimant’s objection to the commissioner’s characterization of her complaints of injury is unfounded. The commissioner found that she originally complained only of right arm pain. That conclusion is supported by the claimant’s own statement of claim to the insurer, which focused on the pain in her right arm that resulted from an August 1986 muscle pull.

The commissioner ’s other finding was that “[b]y February 1992, Claimant’s complaints included pain in the anterior neck, right lateral neck, trapezious area, right arm, right shoulder, right sub-scapular area, right hip gluteal area, right posterior thigh and leg, bottom of the right foot and left anterior thigh and leg.” Unlike the claimant, we do not interpret this finding to suggest that the claimant waited until 1992 to mention these other symptoms. The February 1992 date undoubtedly refers to the fact that the claimant made a statement of her injuries at that time for the purpose of these proceedings. Moreover, it is pointless to argue over the date that the claimant first noted each additional symptom, because there was medical evidence to support the commissioner’s ultimate finding that there was no credible evidence that these symptoms were caused by the 1986 compensable injury.

The trial commissioner’s decision is affirmed.

Commissioners Nancy A. Brouillet and Michael S. Miles concur.

1 The transcript of the June 9, 1993 formal hearing in this case was received by the Compensation Review Board on February 21, 1995, and was considered in the formulation of this decision. BACK TO TEXT

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