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Casanovas v. ACME United Corporation

CASE NO. 2179 CRB-4-94-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 9, 1996

AMILCAR CASANOVAS

CLAIMANT-APPELLANT

v.

ACME UNITED CORPORATION

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Nancy A. DeRose, Esq., Gaston & Ruane, 350 Fairfield Ave., Bridgeport, CT 06604.

The respondents were represented by James Moran, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.

This Petition for Review from the September 30, 1994 Finding and Dismissal of the Commissioner acting for the Fourth District was heard August 25, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the September 30, 1994 Finding and Dismissal of the Commissioner acting for the Fourth District. He argues on appeal that the trial commissioner erroneously made a factual finding not supported by the evidence, and that a remand for further proceedings is necessary in light of that mistake. We affirm the trial commissioner’s decision.

This appeal results from the dismissal of the claimant’s claim for injuries to his back, neck and knee. The parties established by voluntary agreement approved on September 17, 1992 that the claimant suffered a compensable injury on July 15, 1992 in the form of burns to his chest, arms, and face, and that graft sites on his upper left thigh also resulted from the injury. The trial commissioner found that the claimant signed a statement on July 24, 1992 that made no mention of a back, neck or knee injury in discussing the July 15 event. The commissioner then noted that Dr. Dworken, an orthopedic surgeon, saw the claimant on October 6, 1992 on referral from Dr. Calabrese, the claimant’s plastic surgeon, due to complaints of back and knee discomfort. He found that, although Dr. Dworken noted in his report that Dr. Calabrese had documented the back and knee injuries, Dr. Calabrese had mentioned only the claimant’s acid burns in his September 15, 1992 report. The commissioner therefore concluded that the claimant failed to sustain his burden of proof, and dismissed the claim. This appeal followed.1

The claimant argues it is undisputed that Dr. Calabrese mentioned the claimant’s other injuries in his report, and that the commissioner erred in denying his Motion to Correct the findings to reflect that fact. He cites several cases, including Golino v. Standard Builders, 13 Conn. Workers’ Comp. Rev. Op. 84, 1510 CRB-1-92-9 (Jan. 23, 1995), in support of his position. In Golino, this board ruled that it was error for the trial commissioner to find that a doctor’s letter was taken into account by both parties in reaching a compromise where there was no evidence that the claimant ever knew about the letter. “An inference must have some definite basis in the facts . . . and the conclusion based on it must not be the result of speculation and conjecture.” Id., 86, quoting Gulycz v. Stop & Shop Companies, 29 Conn. App. 519, 522, cert. denied, 224 Conn. 923 (1992). Because the inference was based on a fact not in evidence, we remanded Golino to the First District for further proceedings.

We do not believe that the commissioner’s finding regarding Dr. Calabrese’s report is without basis in this case. Keeping in mind that the claimant had the burden of proving the existence of back, neck and knee injuries and their relationship to the compensable chemical explosion of July 15, 1992, we observe that Dr. Dworken’s reports diagnosing the claimant with a permanent partial disability of the cervical and lumbosacral spines linked those conditions with the claimant’s compensable injury. (Claimant’s Exhibits E, F). However, Dr. Dworken specifically stated that “it is obvious that he certainly fell and injured these areas,” and noted that the claimant explained that the accident occurred when he “moved back and twisted his knee and twisted his back.”

This is not consistent with Dr. Calabrese’s report, which notes that the claimant complained of left knee pain “because of the way he has favored his left knee while walking because of discomfort of the donor site. In addition, he is having some back pain because of what he felt was the same basis.” (Claimant’s Exhibit D). Part of the burden of proving a compensable injury is establishing how the injury occurred. The finding challenged by the claimant notes that Dr. Calabrese’s report mentioned no other injuries “apart from the discussion of these chemical burns.” That is correct in the sense that the cause of the injuries was described as the sequelae of the burns themselves, and not as trauma caused by the force of the initial explosion as suggested by Dr. Dworken’s report. This discrepancy explains the meaning of the contested finding, and could have logically raised a question in the commissioner’s mind as to the circumstances surrounding the alleged injuries.

The trial commissioner is the fact-finding authority in workers’ compensation cases, and is charged with determining the credibility of the testimony and other evidence presented. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69., 1859 CRB-5-93-9 (May 12, 1995). We cannot disturb his findings if they are supported by the evidence, and cannot disturb his conclusions unless they are illegally or unreasonably drawn from the findings. Id. Here, the commissioner made a standard credibility determination regarding the medical reports offered by the claimant in support of his claim. His findings were not without evidentiary support. When we couple the trier’s authority to judge the weight of evidence with the uncontested fact that there was a voluntary agreement in place specifying the burns that resulted from the compensable injury, we can hold only that his decision to dismiss the claim must stand.

The trial commissioner’s decision is affirmed.

Commissioners Roberta S. Tracy and Michael S. Miles concur.

1 This board denied a motion by the claimant to submit as additional evidence the live testimony of Dr. Calabrese. The claimant did not demonstrate that said evidence was new or that it was unavailable at the time of the formal hearing. Casanovas v. Acme United Corp., 2179 CRB-4-94-10 (decided May 10, 1995). BACK TO TEXT

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