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Calinescu v. CFD Associates

CASE NO. 1794 CRB-8-93-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 21, 1995

CORNEL CALINESCU

CLAIMANT-APPELLANT

v.

CFD ASSOCIATES

EMPLOYER

and

AMERICAN STATES INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Brian S. Karpe, Esq., 81 Wethersfield Ave., Hartford, CT 06114.

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

This Petition for Review from the July 27, 1993 Finding and Dismissal of the Commissioner acting for the Eighth District was heard August 26, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 27, 1993 Finding and Dismissal of the Commissioner for the Eighth District. He argues on appeal that the commissioner’s conclusions are inconsistent with the facts found. We affirm the trial commissioner’s decision.

The claimant was employed by the respondent as the superintendent of an apartment complex. He alleges that he sustained an injury to his right shoulder on July 12, 1991, which the respondents have not accepted. He testified that while pulling a refrigerator on a hand truck up a flight of stairs, he felt a pull in his right shoulder and elbow, and that when he reported the injury to his supervisor, he was fired. The claimant’s supervisor testified that the claimant did not report an injury on July 12, 1991, and was in fact fired for failure to complete preparation of an apartment for a new tenant.

The claimant’s treating physician opined that the claimant had a posterior subluxation (a dislocation) of his right shoulder, which would be caused by a strong force being applied to the claimant’s arm and forcing it backwards. The commissioner noted that the claimant stated he was pulling the refrigerator up the stairs, however, with no other motion described. He found that this did not account for the doctor’s description of how this injury could have occurred. The commissioner dismissed the shoulder injury claim, concluding that the claimant had not established that said injury had occurred while moving a refrigerator for the respondents. The claimant appeals that decision.1

The claimant argues that the commissioner’s conclusions are inconsistent with the subordinate facts in this case. He notes that his treating physician, Dr. Greco, did not take issue with his assertion that he injured his shoulder lifting a refrigerator upstairs. In fact, the doctor opined that the claimant’s injury was due to the July 12, 1991 work incident. Likewise, none of the referral physicians questioned the relationship between the claimant’s injury and the work activity described.

The claimant also endeavors to explain how the forces of gravity would have acted upon the refrigerator as the claimant attempted to maneuver it up the stairs with a hand truck. The perpendicular surfaces on the stairway would necessarily force the hand truck to buck and move as each surface was encountered, thus stretching and pulling the claimant’s shoulder joint. The claimant argues that the commissioner’s finding that the claimant’s diagnosed injury could not have been caused by lifting the refrigerator might have been acceptable if the claimant had been pulling the refrigerator up a smooth ramp, but such is not the case where stairs are involved.

The trial commissioner possesses the power and duty of determining the facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). “The conclusions drawn by him 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.” Id., quoting Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). The determination of whether a particular injury arose out of and in the course of employment is a question of fact. Fair, supra; Marzano v. Luis, 10 Conn. Workers’ Comp. Rev. Op. 129, 130, 1181 CRD-5-91-2 (May 21,1992). See also Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 205, 208, 1289 CRD-6-91-9 (Dec. 2, 1992) (claimant has burden of proving causal relationship between disability and employment).

In this case, the claimant’s physician testified that the claimant’s dislocated shoulder probably occurred by forcing his arm backward. Although neither he nor any other physician actually disputed the claimant’s description of the manner in which this injury took place, it was still incumbent upon the claimant to prove the connection between the injury and the work activity. The only direct evidence of the relationship between the employment and the injury was the claimant’s testimony. The commissioner, not this Board, is the one charged with determining the credibility of witnesses and evidence. Adzima, supra, 118; Marzano, supra, 130. He determined here that the claimant’s testimony did not support the conclusion that lifting the refrigerator caused the injury described by his doctors. He also cited the testimony of the claimant’s supervisor, who stated that the claimant did not report the injury at the time of the incident. We will not disturb the commissioner’s conclusions as to that matter. Id.

We also note that it would be peculiarly inappropriate for this Board to make a determination regarding the physical effects of lifting a refrigerator upstairs with a hand truck. That is clearly a factual issue properly made by the commissioner after the presentation of evidence, not an issue of law to be decided by an appellate body. We must conclude that the commissioner could reasonably have determined that the claimant’s dislocated shoulder was not caused by pulling a refrigerator up the stairs.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 The claimant has also filed a Motion to Submit Additional Evidence seeking to admit the deposition and medical records of a physician who performed surgery on the claimant over seven months after the last formal hearing. This evidence allegedly shows that it was medically reasonable that the claimant’s injury was caused by pulling a refrigerator up the stairs. The claimant cites Grey v. Greenwood Health Center, 9 Conn. Workers’ Comp. Rev. Op. 266, 1062 CRD-1-90-6 (Dec. 5, 1991), in support of his argument that the criteria of Administrative Regulation § 31-301-9 are met by the evidence he offers. As we stated in Grey, however, we are reluctant to admit evidence at the appellate level, and will not admit cumulative evidence “unless its character or force be such that it would be likely to produce a different result.” Id., 268. The physician’s testimony offered here merely indicates that it is possible that the claimant’s dislocated shoulder was caused by the refrigerator incident, along with another incident that occurred on June 14, 1991, where the claimant fell after being stung by a bee. We do not believe that this evidence is reasonably likely to produce a different result. The Motion to Submit Additional Evidence is therefore denied. BACK TO TEXT

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