Bell v. Bob McCarthy d/b/a Environmental Tree Care

The claimant was represented by Richard A. Wallace, Esq., Teitenberg & Wallace, 902 South Quaker Lane, West Hartford, CT 06110.

The respondent was represented by Timothy Fetzer, Esq., Renzullo & Associates, 65 Elm St., P. O. Box 718, Winsted, CT 06098.

The Second Injury Fund was not represented at oral argument. Notice sent to J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 9, 1995 Finding and Award of the Commissioner acting for the Sixth District was heard September 20, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the November 9, 1995 Finding and Award of the Commissioner acting for the Sixth District. He argues on appeal that the commissioner erred by finding that the claimant suffered a compensable injury. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant was employed by the respondent on or about November 23, 1994.1 While picking up a section of tree trunk that he had cut, the claimant suffered an injury to his lumbar spine. He attempted to telephone the respondent to notify him of his back injury over the long Thanksgiving weekend, and left a message on his answering machine. He reported for work the following Monday, but could only work for a short time due to back pain. The respondent, who was personally informed of the injury at that time, told the claimant to seek medical treatment for his back injury, and agreed to pay the expenses.

The claimant saw Dr. Downs, who diagnosed intervertebral disc syndrome, and determined that the claimant was totally disabled through May 5, 1995, when he was released for light work. He diagnosed the claimant with a 5% permanent partial disability of the back. An orthopedic surgeon, Dr. Gerratana, performed an examination at the respondent’s request, and would not give a permanent partial disability rating because he did not believe the claimant had reached maximum medical improvement. The trial commissioner agreed with the latter diagnosis, and also found the claimant’s back injury compensable. He ordered payment of temporary total disability benefits and the treating physician’s medical bill. The respondent appealed that decision.

The respondent contended at oral argument that the claimant did not sustain his burden of proof in establishing the occurrence of a compensable injury. A look at the transcript of the August 8, 1995 formal hearing shows that the claimant himself testified that he suffered sharp pain in his back and left leg while removing a two-foot log from the roadway, and that this injury kept him out of work for six months. (Transcript, p. 6-9, 18.) He also stated that when the injury occurred, he tried to call the respondent over the weekend but his answering machine did not pick up. (Id., 12). It was up to the trial commissioner to decide whether he found this testimony believable. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The findings indicate that he did. We need explore this matter no further, as we must defer to the commissioner’s assessment of the credibility of the evidence. Webb, supra.

The trial commissioner’s decision is affirmed. As the claimant reported that the Second Injury Fund paid the award when the employer failed to meet his responsibilities, we need not direct the payment of interest under § 31-301(b).

Commissioners Robin L. Wilson and Michael S. Miles concur.

1 The commissioner found that the respondent had no workers’ compensation insurance, and ordered that he pay a $3,500 fine pursuant to § 31-288 C.G.S. BACK TO TEXT