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Kennedy v. Heavy Duty Nelson Electric

CASE NO. 2139 CRB-5-94-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 8, 1995

MATTHEW J. KENNEDY

CLAIMANT-APPELLANT

v.

HEAVY DUTY NELSON ELECTRIC

EMPLOYER

and

TRAVELERS INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant conducted his appeal pro se, and represented himself at oral argument.

The respondents were represented by Joseph J. Passaretti, Jr., Esq., Law Offices of Christine L. Harrigan, 1952 Whitney Ave., Hamden, CT 06517-1209.

This Petition for Review from the September 1, 1994 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 5, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The pro se claimant has petitioned for review from the September 1, 1994 Finding and Award of the Commissioner acting for the Fifth District. He argues on appeal that the trial commissioner made a mistake by concluding that he did not suffer a compensable injury to his back. We affirm the trial commissioner’s decision.

Before we address the facts of this case, we will rule on the respondents-appellees’ Motion to Dismiss the claimant’s appeal for failing to file a brief. In the past, this board has dismissed appeals for failure to file a brief under Practice Book § 4055, which allows this board to penalize an appellant for not prosecuting an appeal with proper diligence. See Green v. Labor Force of America, Inc., 13 Conn. Workers’ Comp. Rev. Op. 146, 1908 CRB-3-93-11 (Feb. 1, 1995). We will not do so in this case for two reasons. First, the claimant-appellant is appearing pro se, and will not be held to the strict standard of compliance with our procedural rules as is a practicing attorney. Second, and more importantly, the claimant’s Reasons of Appeal presented in great detail his claims of error, arguments and reasoning on appeal. Although normally a mere list of appellate arguments is not sufficient to apprise this board or the appellees of the relevant issues, in this case the Reasons for Appeal did convey the necessary information. Therefore, we deny the respondents’ Motion to Dismiss.

Turning to the facts, the parties stipulated that the claimant was an employee of the respondent, that timely notice was given for an alleged injury on June 19, 1992, and that a timely disclaimer was filed by the employer. The only issue before the commissioner was the compensability of the claimant’s injury. The claimant alleged that he injured his back during the course of three weeks of work leading up to June 19, 1992, during which he was required to handle spools of wire weighing as much as 400 pounds. No specific incident of injury was alleged. The commissioner found that the claimant was unable to work because of back pain on Monday, June 22, 1992.

The commissioner found that, in response to questions about his back pain, the claimant told a co-worker and his production supervisor that he had fallen down his neighbor’s stairs over the weekend. The employer’s operations manager testified that about two weeks after the injury, the claimant reiterated his claim that he fell down the stairs over the weekend of June 19-21, 1992. The commissioner also noted that Dr. Haag, the claimant’s treating physician, was unsure whether the claimant’s injury was due to an occupational incident. He further noted that Dr. Krompinger, who treated the claimant after Dr. Haag, was of the opinion that the claimant’s back problem had to be caused by an acute, specific event, and that his report referred to an undescribed specific event on June 19, 1992. The trial commissioner concluded from this evidence that the claimant’s back problems were aggravated over the weekend of June 19-21, 1992, and that his allegation of a workplace injury was unsupported by the evidence. The claimant has appealed that decision to this board.

First, the claimant has requested permission to submit additional evidence in accordance with Administrative Regulation § 31-301-9. Under that rule, this board may accept additional evidence at the time of appeal if the claimant alleges that the additional evidence is material and that there were good reasons for his failure to present it earlier. The claimant has indicated that he would like to present the testimony of the physicians who treated him, as well as the results of a polygraph test. He states that this evidence was not introduced before because he could not afford to pay for it.

The claimant, who is now proceeding pro se, had counsel at the time of the formal hearings. Said counsel chose not to pursue this evidence, no doubt taking into account the fact that the claimant could not afford it. This was part of the decision on how much money to spend in preparation for this case, and what tactics to use in presenting it. Although we sympathize with the claimant, the evidence he now seeks to introduce would have been available at the formal hearings if requested. We cannot say on review that the claimant has given us a good enough reason to allow his additional evidence. See Casanovas v. ACME United Corp., 2179 CRB-4-94-10 (decided May 10, 1995); Carr v. Southern New England Telephone Co., 13 Conn. Workers’ Comp. Rev. Op. 21, 22, 1846 CRB-3-93-9 (Nov. 4, 1994). He also has not indicated what his doctors would say that would change the outcome of this case. Therefore, we must deny his Motion to Submit Additional Evidence.

The claimant primarily challenges the commissioner’s reliance on the respondents’ witnesses with regard to his alleged fall down the stairs, and also disputes his interpretation of the medical evidence. When a trial commissioner conducts formal hearings to determine the facts of a claim, both parties are allowed to present medical evidence and testimony at those hearings, and the trial commissioner decides which to believe. Fair v. People’s Savings Bank, 207 Conn. 535, 538-41 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-19 (1979); Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995). Once the commissioner finds specific facts, this 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. 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.

In this case, the claimant had the burden of proving that his injury arose out of and in the course of his employment. Id., 541. Dr. Krompinger’s medical reports stated that the claimant’s back injury was caused by an acute event, and that the claimant had told him that he injured himself at work. The doctor also acknowledged that the claimant could have just as easily suffered a non-work-related injury. He indicated that his final opinion would depend on the version of the claimant’s history that proved true. The trial commissioner thus had the job of figuring out how the injury took place.

The claimant, his wife and his neighbor, Mr. Murphy, testified on the claimant’s behalf at the formal hearing. The commissioner could have chosen to believe their testimony if he found it to be credible. Instead, he accepted the testimony of several of the claimant’s co-workers, who each testified that the claimant personally told them he had been injured falling down the stairs over the weekend. This testimony shed doubt on the claimant’s explanation of his back injury, and the trial commissioner was entitled to rely on it if he found it believable. Webb, supra. We cannot say on review that the trial commissioner should or should not have believed one group of witnesses over another.

Therefore, we must affirm the trial commissioner’s decision that the claimant did not meet his burden of proof regarding the cause of his injury.

Commissioners Roberta S. Tracy and Amado J. Vargas concur.

Workers’ Compensation Commission

Page last revised: January 21, 2005

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