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Jusiewicz v. Reliance Automotive

CASE NO. 3140 CRB-6-95-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 24, 1997

EDMUND JUSIEWICZ

CLAIMANT-APPELLANT

v.

RELIANCE AUTOMOTIVE

EMPLOYER

and

ATLANTIC MUTUAL

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Jacek I. Smigelski, Esq., 122 Main Street, P. O. Box 875, New Britain, CT 06050-0875.

The respondents were represented by Dominick Statile, Esq., Montstream & May, 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the August 2, 1995 Finding of Facts and Award of Compensation and the August 7, 1995 Corrected Finding and Award by the Commissioner acting for the Sixth District was heard June 28, 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 August 2, 1995 Findings of Facts and Award of Compensation and the August 7, 1995 Corrected Finding and Award of the Commissioner acting for the Sixth District. He argues that the commissioner ignored uncontradicted evidence of his permanent partial disability. We affirm the trial commissioner’s decision.

The commissioner found that the claimant was employed by the respondent Reliance Automotive from July 1991 to July 1993. His duties included testing and cleaning parts, which required him to lift and carry some of the parts. While carrying a box of parts on March 4, 1993, the claimant slipped on a piece of metal lying on the floor and lost his balance, causing the box to strike him in the left side of his abdomen. He sought medical treatment on March 16, 1993, and was diagnosed by Dr. Slysz with a left inguinal hernia. Dr. Slysz referred the claimant to Dr. Donahue, who placed the claimant on restricted work duty until he could surgically repair the hernia on April 29, 1993. Afterward, the claimant was totally disabled until June 14, 1993.

The commissioner found that the claimant’s injury was compensable, and that his left inguinal hernia was caused by the workplace accident. He also noted that Dr. Donahue opined that the claimant had suffered a 10 percent permanent partial disability of his pelvis because of the hernia injury and the resultant surgery. The commissioner found, however, that Dr. Donahue’s arguments concerning the permanent pelvic impairment were not persuasive. He ordered the respondents to pay all of the claimant’s medical bills, and temporary total disability benefits from April 29, 1993 to June 14, 1994. The commissioner issued a corrected decision five days later changing the cutoff date for temporary total disability benefits to June 14, 1993; the 1994 date appears to have been a typographical error. The claimant has filed a petition for review from those decisions.1

The claimant argues in his brief that the respondent did not submit any evidence to refute the medical opinion of Dr. Donahue, and that the claimant’s permanent partial disability was an undisputed fact. He cites McCurdy v. State, 227 Conn. 261 (1993), in support of his position. In McCurdy, our Supreme Court reversed a commissioner’s decision to omit findings concerning the claimant’s degree of permanent partial disability and his reaching maximum medical improvement prior to his death, noting that this evidence was undisputed. The court reached that holding not because a trial commissioner is always required to believe uncontradicted medical evidence, however. They reached that decision because the commissioner and this board had misapplied the law regarding concurrent entitlement to temporary total disability benefits and permanent partial disability benefits, and had failed to award a decedent’s estate permanent partial disability benefits even though the decedent had reached maximum medical improvement prior to his death. Id., 266-68.

The rule in Connecticut workers’ compensation proceedings is that the trial commissioner is entitled to weigh the credibility of all medical opinions, uncontradicted or not, in reaching a decision. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 334, 1592 CRB-5-92-12 (April 27, 1995) Aff’d., 40 Conn. App. 934 (1996) (per curiam). Once he makes a finding regarding the credibility of evidence, this board is not permitted to reevaluate that evidence and reach its own conclusions absent a clear abuse of discretion. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Here, the commissioner stated in his findings that he did not find Dr. Donahue’s arguments persuasive concerning the relationship between the hernia repair surgery and the pelvic disability. Not only did the claimant fail to file a Motion to Correct, thus limiting this board to the commissioner’s findings; see Bell v. U.S. Home Care Certified of Connecticut, 13 Conn. Workers’ Comp. Rev. Op. 294, 295, 1792 CRB-1-93-8 (April 21, 1995); but he is also asking this board to override the commissioner’s decision regarding the credibility of that testimony. We simply cannot do that on review.

The trial commissioner’s decision is affirmed.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 The respondents argue in their brief that the claimant’s petition for review, which was filed at the Sixth District office on August 17, 1995, was untimely. However, we do not agree with their contention that the August 7, 1995 Corrected Finding and Award was legally irrelevant to the appeal period. Although the initial decision was issued on August 2, 1995, the August 7, 1995 correction amended that decision, superseding it as to the proper cutoff date for total disability benefits. The petition for review was filed within ten days of that decision. We hold that the ten-day appeal period in § 31-301 commenced running on the date of the corrected decision in this case. BACK TO TEXT

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