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Sharkey v. Triangle/PWC

CASE NO. 2111 CRB-6-94-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 17, 1996

TIMOTHY SHARKEY

CLAIMANT-APPELLANT

v.

TRIANGLE/PWC

EMPLOYER

and

GALLAGHER BASSETT SERVICES

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Katherine E. Meshako, Esq., Law Office of John Haymond, 999 Asylum Ave., Hartford, CT 06105-2450.

The respondents were represented by John M. Walsh, Jr., Esq., Lynch, Traub, Keefe & Errante, 52 Trumbull Street, P. O. Box 1612, New Haven, CT 06506.

The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the July 22, 1994 Findings of Facts and Award of Compensation of the Commissioner acting for the Sixth District was heard April 21, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 22, 1994 Findings of Facts and Award of Compensation by the Commissioner for the Sixth District. He argues on appeal that the commissioner erroneously denied his Motion to Correct. We affirm the trial commissioner’s decision.

The commissioner found that the claimant was involved in a serious motorcycle accident on June 8, 1991, severely injuring his back. The accident did not arise out of or during his course of employment. The claimant was totally disabled from the accident until he returned to work for the respondent on January 2, 1992. He was still working for the respondent on June 16, 1992, when he allegedly struck a pothole while driving a fork lift and sustained another injury to his back. The claimant’s doctors opined that his subsequent surgery resulted from that incident, having relied on the claimant’s history in their opinions. However, the commissioner found that the claimant’s testimony was not credible with respect to the incident of June 16, 1992. He also found that with respect to another claimed incident at work on June 17, 1992, the claimant was sick and never reported for work, nor did he report the injury to his employer. Therefore, he concluded that the claimant had failed to prove that he sustained back injuries on either June 16, 1992 or June 17, 1992. The claimant has appealed from that decision.1

“Determining whether an injury arose out of the course of employment is a question of fact for the commissioner.” Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 1699 CRB-8-93-4 (November 7, 1994), citing Crochiere v. Board of Education, 227 Conn. 333, 346 (1993); see also Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Administrative Regulation § 31-301-8 clearly states that the review of the commissioner’s decision on appeal is not a de novo hearing of the facts. Our review of the factual findings is limited to the determination of whether or not the findings should be corrected, or whether there was any evidence to support in law the conclusions reached. See Fair, supra; Adzima v. UAC/Norden Division, 177 Conn. 107 (1979). The findings of the commissioner cannot be disturbed when those findings depend upon the weight of the evidence and credibility of the witnesses. See § 31-301-8 and Adzima, supra. Therefore, the commissioner’s factual findings and conclusions must stand unless they result from an incorrect application of the law or from an illegally or unreasonably drawn inference from the material facts. Fair, supra, citing Adzima, supra; Mathurin v. Putnam, 136 Conn. 361, 366 (1950).

The claimant alleges that the trial commissioner’s findings were inconsistent and unsupported by the evidence and, therefore, that the commissioner erred by denying the claimant’s Motion to Correct. We disagree.

Many of the requested corrections arguably contradict the findings of the commissioner. For example, the claimant requested that his finding be corrected to include that the claimant sustained a work-related injury on June 16, 1992 and June 17, 1992 and, as a result, was temporarily totally disabled until March, 1993. The claimant’s Motion to Correct also includes award calculations and a request for reimbursement of medical bills. It is evident that these facts would be material if there were a finding that the claimant was in fact injured at work. However, the commissioner found that the claimant’s testimony was not credible. There was also evidence which indicated that the claimant had responded to a fire call during his work shift on June 16, 1992 and was out sick on June 17, 1992. The commissioner ultimately found that the claimant failed to meet his burden of proof on the threshold issue of whether he sustained a work-related injury. Therefore, these corrections were properly denied.

The claimant also claims error in the commissioner’s failure to include various findings relating to the claimant’s medical condition prior to and following the alleged incidents of June 16 and June 17, 1992. These requested corrections include: adding a finding that the claimant’s doctor reported that in March, 1992 the claimant was “markedly improved;” that the claimant was uninjured from his roofing activities over the Memorial Day weekend prior to the alleged work injuries; that previous x-rays showed “no signs of problem;” that a “new injury” was found after the alleged work related accidents; and that the claimant was not injured on a fire call on June 16, 1992. While all of these findings may be relevant to whether the claimant had sustained additional injuries or aggravation of previous injuries to his back, they were not necessarily material in this case, as the commissioner did not find that the claimant was not injured. Rather, the commissioner found that the claimant had not sustained back injuries on June 16 or 17, 1992 while at work. “A material fact is defined as one that will affect the outcome of a case.” Plitnick v. Knoll Pharmaceuticals, supra, 28, citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994). The addition of these corrections would not have affected the outcome of the decision, and was therefore properly denied.

The claimant also claims that in the face of uncontroverted medical testimony the commissioner erred by failing to include findings relative to that testimony. The commissioner has the discretion to determine the weight of the evidence and the credibility of the testimony produced by lay and expert witnesses. Adzima, supra; Webb v. Pfizer, Inc., 1859 CRB 5-93-9 (decided May 12, 1995). Even in the face of uncontroverted medical testimony the commissioner is not required to give that testimony significant weight if the commissioner believes it to be incredible or simply not relevant to the findings. Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Compensation. Rev. Op. 235, 1000 CRD-5-90-4 (October 30, 1991). Significantly, the medical evidence offered by the claimant at the formal hearing was based on statements and representations made by the claimant to his doctors as to how he was injured.

Lastly, the claimant argues that the commissioner improperly found that the employer was not given notice of the alleged second incident until December 29, 1992, more than six months later. The claimant cites testimony he presented at the formal hearing which indicated that an oral report was made prior to that date by the claimant to an agent of the employer, theoretically imputing knowledge to the employer. Again, the trial commissioner is not required to believe all the testimony presented and has the discretion to determine the weight and credibility of the evidence presented to him. Webb, supra. It was reasonable for the commissioner to find that the employer had not received notice until December 29, 1992. These corrections were also properly denied.

We affirm the trial commissioner’s decision.

Commissioners Amado J. Vargas and Michael S. Miles concur.

1 The claimant’s Motion to Submit as Additional Evidence the testimony of his supervisor and a co-worker to corroborate his claim that he was injured at work was denied by this board on March 21, 1995. The claimant did not have a good reason for failing to present that evidence at the hearings before the trial commissioner, and thus did not satisfy the requirements of Administrative Regulation § 31-301-9. BACK TO TEXT

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