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Wheeler v. Brake Systems, Inc. et al.

CASE NO. 2015 CRB-4-94-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 17, 1995

VERTIS WHEELER

CLAIMANT-APPELLANT

v.

BRAKE SYSTEMS, INC.

EMPLOYER

and

RAYMARK INDUSTRIES, INC.

EMPLOYER

and

RAYBESTOS MANHATTAN

EMPLOYER

and

RAYMARK CORPORATION

EMPLOYER

and

GALLAGHER BASSETT SERVICES, INC.

ZURICH INSURANCE CO.

NATIONAL UNION FIRE INSURANCE CO.

ALEXSIS, INC.

IDEAL MUTUAL INSURANCE CO.

CONNECTICUT INSURANCE CO.; and

CONNECTICUT GUARANTY ASSOC.

INSURERS

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

APPEARANCES:

The claimant was represented by Norma Johnson, Esq., Cousins & Johnson, 2563 Main St., Stratford, CT 06497.

The respondents Brake Systems and Gallagher Bassett were represented by Lawrence R. Pellet, Esq., Feeley, Nicholas, Chase & McDermott, 37 Leavenworth St., P.O. Box 2300, Waterbury, CT 06722-2300.

The respondent Zurich Insurance was represented by Kevin J. Maher, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430-0550. However, they did not appear or file a brief before the Compensation Review Board.

The respondents Raymark, National Union Fire Insurance, and Alexsis, Inc., were represented by James T. Baldwin, Esq., Cotter, Cotter & Sohon, P.C., 500 Boston Post Road, Milford, CT 06460.

The Second Injury Fund was represented by Michael J. Belzer, Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120. However, they did not appear or file a brief before the Compensation Review Board.

This Petition for Review from the April 4, 1994 Finding and Dismissal of the Commissioner acting for the Fourth District was heard March 10, 1995 before a Compensation Review Board panel consisting of Commissioners George Waldron, Roberta Smith D’Oyen, and Amado J. Vargas.

OPINION

GEORGE WALDRON, COMMISSIONER. The claimant has petitioned for review of the April 4, 1994 Finding and Dismissal of the Commissioner for the Fourth District. In that decision, the commissioner ruled that the claimant failed to meet his burden of proving that his lung cancer was causally related to his asbestos exposure at work. The commissioner further ruled that the claimant failed to file a timely notice of claim as required by § 31-294c. In support of his appeal, the claimant contends that his exposure to asbestos while at work was a substantial cause of his lung cancer. The claimant further contends that his notice of claim was timely.

This tribunal has long held that where the medical evidence is conflicting, the trial commissioner’s conclusion must stand so long as there is evidence to support it. Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994); Dusto v. Rogers Corp., 12 Conn. Workers’ Comp. Rev. Op. 80, 1496 CRB-1-92-8 (Feb. 4, 1994); Pulcinella v. Prudential Insurance Company, 10 Conn. Workers’ Comp. Rev. Op. 251, 1236 CRD-6-91-5 (Jan. 11, 1993). Moreover, this board “may not disturb the commissioner’s conclusions which are dependent on the weight and credibility accorded the evidence.” Miller, supra, at 349.

In his appeal, the claimant urges us to find that the claimant’s exposure to asbestos during his employment was a substantial cause of his lung cancer. In support of this contention, the claimant relies upon Dr. Godar’s deposition testimony. However, the trial commissioner set forth in his opinion that (1) the only medical evidence presented by the claimant regarding the causation of his cancer and his workplace exposure to asbestos was a deposition of Dr. Godar; (2) Dr. Godar was never a treating physician, and never saw the claimant until after his lung had been removed; (3) Dr. Godar was retained by the claimant’s attorney only after all of the claimant’s treating physicians failed to establish the medical causation necessary to support his claim; and (4) Dr. Godar opined that the claimant’s smoking was the major cause of his cancer. Thus, the commissioner’s determination that the claimant’s exposure to asbestos was not a substantial cause of his cancer was clearly based upon the weight which he accorded the testimony of Dr. Godar. We will not disturb such a determination. Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 1000 CRD-5-90-4 (Oct. 30, 1991).

The claimant further argues that the commissioner erroneously denied his Motion to Correct. According to the claimant, the commissioner should have corrected his decision to add the claimant’s proposed findings regarding the medical opinion of Dr. Godar. On review of the denial of a Motion to Correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion to Correct also may be denied properly where the legal conclusion of the commissioner would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). In the instant case, the commissioner accorded little weight to the opinion of Dr. Godar. (See Finding No. 24). A commissioner, as a trier of fact, has the right to reject testimony even if it is seemingly uncontradicted. Colucci, supra. We find no error in the commissioner’s denial of the claimant’s motion to correct.

Whether the trier erred in finding that the claimant’s injury arose out of and in the course of his employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Northrop v. Boehringer Ingelheim, 9 Conn. Workers’ Comp. Rev. Op. 228, 1032 CRD-7-90-6 (Oct. 30, 1991). We conclude that there is sufficient evidence in the record to support the trial commissioner’s determination that the claimant’s injury was not caused by his employment.

Because we affirm the commissioner’s determination that the claimant’s injury did not arise out of or during the course of his employment, we need not address the issue of whether the claimant filed a timely notice of claim. See Messier v. General Dynamics/ Electric Boat Division, 12 Conn. Workers’ Comp. Rev. Op. 157, 1495 CRB-2-92-8 (April 26, 1994).

The trial commissioner’s decision is affirmed, and the claimant’s appeal is dismissed.

Commissioners Roberta Smith D’Oyen and Amado J. Vargas concur.

Workers’ Compensation Commission

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