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Fontanella v. C.H. Moore Company

CASE NO. 1916 CRB-2-93-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 11, 1995

JOHN FONTANELLA

CLAIMANT-APPELLEE

v.

C. H. MOORE COMPANY

EMPLOYER

LUMBER MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Brian Prucker, Esq., Fitzgerald & Prucker, 1127 Tolland Tnpk., Manchester, CT 06040.

The respondent employer was represented by A. Alan Sheffy, Esq., Regnier, Taylor, Curran & Eddy, Cityplace, Hartford, CT 06103-4402.

This Petition for Review from the November 29, 1993 Finding and Award of the Commissioner acting for the Second District was heard November 18, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the November 29, 1993 Finding and Award of the Commissioner for the Second District, in which the trial commissioner found that the claimant sustained a compensable back injury. The employer contends in its appeal that the trial commissioner erroneously admitted into evidence a handwritten note by the claimant’s treating physician, Dr. Van Nostrand. The employer further contends that in the absence of this document, the claimant failed to establish the requisite causal connection between the claimant’s back injury and his employment. We find no error.

The commissioner found that the claimant, a foreman whose duties included loading and unloading materials, sustained an injury to his lower back on June 1, 1992. The commissioner found the claimant to be credible regarding his testimony that the injury occurred while he was performing his job duties. The claimant’s treating orthopedist, Dr. Ciccarelli, stated in a written report that the claimant “sustained an injury to his lower back while lifting at work.” (Claimant’s Exhibit K). The respondent does not contend that there is any contradictory evidence to discredit the claimant’s credibility, nor does the respondent contend that there is any evidence which contradicts the finding that the injury occurred while at work. Rather, the sole contention made on appeal is that the trial commissioner erred in admitting a handwritten note by the claimant’s original treating physician, Dr. Van Nostrand, which was admitted as Claimant’s Exhibit G.

Workers’ compensation commissioners are not bound by statutory or common-law rules of evidence, “but shall make inquiry, through oral testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” Section 31-298 C.G.S. The trial commissioner has broad discretion to determine the admissibility of evidence, and an evidentiary ruling will not be set aside absent a clear abuse of that discretion. Merchant v. J.S. Nasin Company, 9 Conn. Workers’ Comp. Rev. Op. 122, 123, 952 CRD-2-89-11 (May 1, 1991), citing Dunham v. Dunham, 204 Conn. 303, 324 (1987).

Here, the commissioner’s Finding and Award was amply supported by the testimony of the claimant and by the medical reports of the claimant’s treating physicians. We thus conclude that even if Exhibit G was improperly admitted into evidence, the admission would constitute harmless error. Given the discretion that § 31-298 C.G.S. provides to the commissioner, however, we are unconvinced that the commissioner overstepped her bounds in admitting the physician’s handwritten notes.1

The issue of whether a claimant’s injury arose out of and in the course of his employment presents a question of fact. As an appellate tribunal, we will not disturb such factual conclusions unless they are found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). In the instant case, the trial commissioner’s decision was amply supported by the evidence.

Accordingly, the trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Michael S. Miles concur.

1 In Lee v. City of Norwalk, 13 Conn. Workers’ Comp. Rev. Op. 23, 1626 CRB-7-93-1 (November 7, 1994), this Board recently ruled that a commissioner’s improper admission of an independent medical examining report without affording the opportunity for the claimant to cross-examine the author of that report was reversible error. However, the case at hand is distinguishable from the case of Lee, supra, because in Lee the Board determined that the commissioner’s dismissal of the claimant’s claim rested “almost exclusively” on the medical report, and that the commissioner “quoted substantially” from that report in his written decision. In contrast, in the case before us, the commissioner’s decision did not rest substantially upon the evidence to which the respondent objects. BACK TO TEXT

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