CASE NO. 3154 CRB-4-95-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 4, 1997
CRAWFORD & COMPANY
SECOND INJURY FUND
The claimant was represented by William M. Burke, Esq., 1432 Post Rd., Fairfield, CT 06430.
The respondent employer and insurer were represented by Joseph Trotta, Esq., and Erica Todd, Esq., Trotta, Trotta & Trotta, 195 Church St., Suites 815-817, New Haven, CT 06510.
The Fund was represented at the trial level by Carolyn Signorelli, Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120, who did not appear at oral argument or file a brief.
This Petition for Review from the August 22, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard June 28, 1996 before a Compensation Review Board panel consisting of Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 22, 1995 Finding and Award of the Commissioner acting for the Fourth District. In that decision, the trial commissioner concluded that the claimant failed to meet his burden of proof that the medical treatment which he received from Dr. Richard was reasonable or causally connected to his prior compensable injury. In addition, the trial commissioner denied the claimant’s request for benefits pursuant to § 31-308a. In support of his appeal, the claimant contends that the uncontradicted evidence required the trial commissioner to find that the claimant’s alleged depression and the medical conditions for which he received treatment from Dr. Richard were causally related to the compensable injury. In addition, the claimant reiterates his request for § 31-308a benefits. We find no error on the part of the trial commissioner.
Initially, we note that the claimant has filed a timely petition for review, has filed a timely1 brief, and has appeared at oral argument before this board. The respondents have not filed a motion to dismiss. Under these circumstances, we will not dismiss the claimant’s appeal for failure to prosecute.
In the instant case, the trial commissioner found that the claimant had sustained a compensable injury on September 13, 1989 when he was in an automobile accident. The trial commissioner took judicial notice of an approved voluntary agreement for a ten percent permanent partial disability of the lumbar back. (Finding No. 5; 4/7/94 TR. at p. 2). The claimant contended that the September 13, 1989 injury caused him to require treatment for lumbar and cervical symptoms and for temporomandibular joint disorder. In addition, the claimant contended that he suffered from depression as a result of the compensable injury. The trial commissioner concluded that only the claimant’s lumbar symptoms were causally related to his compensable injury.
The claimant’s argument on appeal is essentially that the commissioner’s conclusion is not supported by the evidence. 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).
Where, as here, the commissioner’s determinations are based upon the weight and credibility that he has accorded the evidence, we will not disturb such determinations. Dickey v. Harris Graphics, 12 Conn. Workers’ Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994). Moreover, a trial commissioner has the “right to reject testimony even if seemingly uncontradicted.” Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 235, 1000 CRD-5-90-4 (Oct. 30, 1991); see also Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996).
Finally, we will address the claimant’s request for § 31-308a benefits. The award of benefits pursuant to § 31-308a is a discretionary award, which may not be reversed absent a commissioner’s abuse of discretion. Richmond v. General Dynamics Corp./Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 345, 1825 CRB-2-93-8 (April 27, 1995). Section 31-308a permits the commissioner to award benefits, after a specific indemnity award has been exhausted, where a claimant’s earning power has been adversely affected by a compensable injury. Burgos v. United Technologies/ Sikorsky Aircraft Division, 12 Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 1994). In the instant case, it was within the discretion of the trial commissioner to deny the claimant’s request for § 31-308a benefits as the claimant did not demonstrate that his earning power was adversely affected by his ten percent permanent partial disability of his lumbar spine, which the trial commissioner determined to be his only compensable injury.
The trial commissioner’s decision is affirmed.
Commissioners George Waldron and Robin L. Wilson concur.
1 The claimant’s motion for an extension of time to file reasons of appeal was granted to fourteen days following the trial commissioner’s ruling on the claimant’s motion to correct. That ruling was issued April 30, 1996. Although the claimant did not file any reasons of appeal, he did file a brief on April 26, 1996. BACK TO TEXT