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Dakos v. ACME Wire et al.

CASE NO. 3072 CRB-2-95-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 23, 1996

MICHAEL DAKOS

CLAIMANT-APPELLANT

v.

ACME WIRE

EMPLOYER

and

FRANK B. HALL

INSURER

and

ASTROSEAL PRODUCTS MFG. CO.

EMPLOYER

and

HUDSON BEARING CO.

EMPLOYER

and

LIBERTY MUTUAL

INSURER

and

DURHAM ENDERS a/k/a EDWARD WECK CO.

EMPLOYER

(UNINSURED)

and

E.R. SQUIBB & SONS, INC.

EMPLOYER

and

WAUSAU INSURANCE CO.

INSURER

and

UTICA MUTUAL INSURANCE CO.

INSURER

and

KEMPER INSURANCE

INSURER

and

AMERICAN MOTORISTS INSURANCE

INSURER

and

FIREMAN’S FUND INSURANCE CO.

INSURER

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Gerard R. Rucci, Esq., Embry & Neusner, 118 Poquonnock Rd., P.O. Box 1409, Groton, CT 06340.

The respondents Acme Wire and Frank B. Hall were represented by the law firm of McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066, which did not appear at oral argument.

The respondent Astroseal Products Mfg. Co. was represented at the trial level by Mr. Ronald Grass, Astroseal Products, 6 Custom Dr., Old Saybrook, CT 06475, who did not appear at oral argument.

The respondents Hudson Bearing & Liberty Mutual were represented by Debra S. Dee, Esq., Law Office of Nancy Rosenbaum, 655 Winding Brook Dr., Glastonbury, CT 06033, who did not appear at oral argument.

The respondents E.R. Squibb and Utica Mutual were represented by G. Randall Avery, Esq., 25 Third St., Stamford, CT 06905, who did not appear at oral argument.

The respondents E.R. Squibb and Kemper were represented by Tracey Cleary, Esq., Law Office of Michael Brodinsky, Esq., P.O. Box 35, North Haven, CT 06473, who did not appear at oral argument.

The respondents E.R. Squibb and American Motorists were represented by Lois A. Frankforter, Esq., 127 Washington Ave., North Haven, CT 06473, who did not appear at oral argument.

Fireman’s Fund Insurance was represented by James Sullivan, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430.

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

This Petition for Review from the June 9, 1995 Finding and Dismissal of the Commissioner acting for the Second District was heard May 10, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 9, 1995 Finding and Dismissal of the Commissioner acting for the Second District. In that decision, the trial commissioner concluded that the claimant failed to meet his burden of proof that his asbestos plueritis was caused by exposure to asbestos during his employment. Specifically, the trial commissioner concluded that the claimant “has not established by a preponderance of credible evidence that he was exposed to asbestos bricks, paste, brake linings, or other asbestos materials while employed at Durham-Enders Weck....” The trial commissioner granted motions to dismiss all claims against Fireman’s Fund, Acme Wire, Astroseal Products, Hudson Bearing Co., E.R. Squibb & Sons, Wausau Insurance, Utica Mutual, Kemper, and American Motorists Insurance. (Finding No. 4). The claimant does not appeal the dismissals of these parties.

In support of his appeal, the claimant contends that the trial commissioner improperly denied the claimant’s motion to correct. The claimant’s appeal addresses only the liability of the respondent employer Durham Enders a/k/a Edward Weck Company (hereinafter referred to as “Durham Enders”).1 We find no error on the part of the trial commissioner.

Whether an injury arose out of and in the course of the employment requires 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 fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). 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).

The claimant argues on appeal that the trial commissioner’s decision is based upon two erroneous findings of fact. Specifically, the claimant contends that the trial commissioner erroneously found that “no evidence was submitted that the bricks and other materials that the parties described and identified as being in boxes and on shelves at Durham-Enders Weck were labeled as asbestos.” (Finding No. 38). The claimant contends that, to the contrary, both the claimant and a witness testified that there were materials labeled asbestos at Durham-Enders. The trial commissioner found that the claimant and a witness testified that they believed that materials containing asbestos were present at Durham-Enders. (Findings No. 32 and 37). However, the trial commissioner was not required to accept the testimony as credible. See Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 235, 1000 CRD-5-90-4 (Oct. 30, 1991) (a trial commissioner has the right to reject testimony even if seemingly uncontradicted); see also Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996).

In addition, the claimant contends that the trial commissioner erroneously denied his motion to correct his finding that Dr. Wade, the claimant’s treating physician, had treated the claimant for several years before he was made aware of any alleged asbestos exposure. 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).

The trial commissioner’s finding that Dr. Wade “after several hospitalizations, subsequently learned that the claimant might have been exposed to asbestos....” (Finding No. 17) is fully supported by the testimony of the treating physician. (Deposition of Dr. Wade at p. 10-11). The trial commissioner’s finding that Dr. Wade treated the claimant for several years prior to learning of the alleged asbestos exposure is not supported by the record. However, that finding would not alter the trial commissioner’s conclusion that the claimant failed to sustain his burden of proving exposure to asbestos during his employment. Accordingly, we find no error in the trial commissioner’s denial of the claimant’s motion to correct. See Knoblaugh, supra.

Where, as here, the commissioner’s determination is based upon the weight and credibility that 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). The trial commissioner’s findings of fact and conclusion regarding causation are fully supported by the record. See Fair, supra.

The trial commissioner’s decision is affirmed.

Commissioners George Waldron and Robin L. Wilson concur.

1 The trial commissioner found that Durham Enders was uninsured during the period that the claimant was employed there, and it was subsequently purchased by Edward Weck Co., which was subsequently purchased by E.R. Squibb & Sons. (Findings No. 8 and 9). BACK TO TEXT

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