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McClinton v. City of Bridgeport

CASE NO. 2079 CRB-4-94-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 28, 1995

MAGGIE MCCLINTON

CLAIMANT-APPELLEE

v.

CITY OF BRIDGEPORT

EMPLOYER

and

TOTAL EMPLOYEE CARE

ADMINISTRATORS

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Mark Carron, Esq., Carron & Fink, 257 Riverside Ave., Westport, CT 06880.

The respondents were represented by Stephen Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the June 10, 1994 Finding and Award of the Commissioner acting for the Fourth District was heard April 7, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the June 10, 1994 Finding and Award of the Commissioner for the Fourth District. In that decision, the trial commissioner concluded that the claimant suffered from temporary total disability commencing May 1, 1994 as a result of a compensable injury which occurred on September 20, 1984. The respondents argue on appeal that the record does not support the commissioner’s conclusion. Specifically, the respondents contend that the claimant failed to meet her burden of proof that her temporary total disability was caused by the 1984 work-related injury. We affirm the trial commissioner’s decision.

In the instant case, the trial commissioner found that the claimant was temporarily totally disabled as of May 1, 1994 due to a compensable head injury which occurred on September 20, 1984. The claimant was examined by Dr. Levy, a neurologist, pursuant to an examination which was ordered by a commissioner under § 31-294f. Dr. Levy opined that the claimant suffered from a stress disorder which caused her to be temporarily totally disabled, and further opined that her condition was caused by the 1984 head injury.

The issue of whether a claimant is totally disabled requires a factual determination. Prioleau v. Larosa Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 140, 144-5, 1432 CRB-8-92-6 (April 7, 1994). Similarly, the issue of the medical causation of a disability is a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the commissioner as the trier of facts. We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Where the commissioner’s determination is based upon the weight and credibility which he has accorded the evidence, we will not disturb such a determination. Dickey v. Harris Graphics, 12 Conn. Workers’ Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994).

Contrary to arguments made by the respondents, in reaching his determination a trial commissioner may rely upon a medical report which is the result of a commissioner-ordered examination. Baccielo v. Business Products, Inc., 13 Conn. Workers’ Comp. Rev. Op. 163, 1732 CRB-4-93-5 (March 9, 1995). In the instant case, the respondents did not object to the admission of Dr. Levy’s report. Moreover, the respondents did not seek to depose or subpoena Dr. Levy. We further note that the respondents did not enter into evidence a medical report written by a psychiatrist who conducted an examination of the claimant at the request of the respondents. Apparently, the trial commissioner accorded great weight to Dr. Levy’s medical opinion. We conclude that the medical report supports the commissioner’s conclusion that the claimant was temporarily totally disabled due to the 1984 head injury.

The trial commissioner’s decision is affirmed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

Workers’ Compensation Commission

Page last revised: January 21, 2005

Page URL: http://wcc.state.ct.us/crb/1995/2079crb.htm

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