Buccieri v. Pacific Plumbing Supply Co.

The claimant was represented by Christopher Goulden, Esq., Mihaly & Kascak, 925 White Plains Rd., Trumbull, CT 06611.

The employer and CIGNA were represented by David W. Schoolcraft, Esq., formerly of Trowbridge, Schoolcraft & Basine, 45 Glastonbury Boulevard, Glastonbury, CT 06033 presently of Duhamel & Schoolcraft, 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.

The employer and Travelers were represented by Joseph J. Passaretti, Jr., Esq., Law Offices of Christine L. Harrigan, P.O. Box 9802, New Haven, CT 06536-0802, who did not appear at oral argument.

The employer and Chubb were represented by William Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike., Vernon CT 06066.

This Petition for Review from the August 23, 1996 Ruling on Motion to Correct of the Commissioner acting for the Seventh District was heard May 9, 1997 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners John A. Mastropietro and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has filed a petition for review from the August 23, 1996 Ruling on the Motion to Correct by the trial commissioner acting for the Seventh District. The trial commissioner had initially issued a March 1, 1996 Finding and Award in which the trial commissioner found that the claimant’s fall at his home on March 24, 1991 was causally related to a prior compensable back injury which had occurred on April 29, 1985. Subsequently, by granting the Motion to Correct, the trial commissioner concluded that the March 24, 1991 fall was not causally related to the prior compensable injury. In support of his appeal, the claimant contends that the trial commissioner erred in granting the Motion to Correct.

The trial commissioner found the following relevant facts in the original Finding and Award which were not altered by the subsequent granting of the Motion to Correct. A voluntary agreement was approved on September 24, 1986 for a herniated intervertebral disc caused by repetitive trauma on April 29, 1985. A subsequent voluntary agreement for a fourteen percent permanent partial disability of the back attributed to said injury was approved on August 11, 1987, which apportioned liability pursuant to § 31-299b among CIGNA, Travelers Insurance, and Chubb Insurance. As a result of the April 29, 1985 injury, the claimant underwent surgery performed by Dr. Nijensohn on June 12, 1985. The claimant left his employment in 1986 and moved to New Hampshire and then to Maine where the claimant held a succession of jobs with various employers. The claimant underwent a second surgery with Dr. Nijensohn on October 9, 1990, which was paid for by the respondents.

The issue before the trial commissioner was whether the claimant’s fall in his driveway on March 24, 1991 was causally related to the compensable April 29, 1985 injury. In the original Finding and Award issued March 1, 1996, the trial commissioner found the following additional facts. The claimant contends that due to leg pain and weakness, he fell on approximately six occasions. (Finding No. 9). The claimant contends that he fell on March 24, 1991 because his leg gave out as a consequence of the April 29, 1985 injury. (Finding No. 16; 4/2/92 TR. at p. 52-55). The claimant first called Dr. Nijensohn’s office regarding the March 24, 1991 fall on April 15, 1991, at which time he was advised to seek medical care locally and therefore went to the emergency room of a local hospital. The claimant received physical therapy from April 16, 1991 through May 3, 1991 from Caroline King, a physical therapist, who testified that the claimant told her he had fallen on ice. (Finding No. 13). The claimant presented medical reports from Dr. Nijensohn which indicated that based upon the claimant’s oral history, the claimant’s fall on March 24, 1991 occurred due to his chronic back problems, leg cramps and weakness. (Finding No 17). The trial commissioner concluded in his original Finding and Award that the claimant’s fall was caused by his prior compensable injury.

The trial commissioner found the following relevant facts as amended by the granting of the Motion to Correct. The claimant failed to produce any medical reports issued prior to the March 24, 1991 incident which supported his contention that he had told Dr. Nijensohn that due to leg pain and weakness, he had fallen on approximately six occasions. (Corrected Finding No. 9). The claimant, prior to the March 24, 1991 fall, had previously scheduled an appointment for March 28, 1991 with Dr. Nijensohn which he did not attend. (Corrected Finding 12b). Despite the claimant’s contention that he called Dr. Nijensohn on March 28, 1991 to report that his condition had deteriorated to such an extent that his leg gave out causing him to fall, Dr. Nijensohn on that very day released the claimant to work and found the claimant to be at maximum medical improvement. (Corrected Finding 12c).

The claimant’s physical therapist, Caroline King, testified that she questioned the claimant regarding the March 24, 1991 fall, and that the claimant specifically told her that he “fell on ice” and that the claimant specifically denied that the fall was caused by his legs giving out.1 (Corrected Finding No. 13). The claimant told King that his back condition was not an issue causing the fall. Id. Furthermore, regarding the weather at the time of the March 24, 1991 fall, the claimant contended that he could not have fallen on snow or ice because it had not snowed for “three or four” weeks, nor had it rained for “a couple of weeks.” (Corrected Finding 18a; 4/28/92 TR. at p. 58-59; 9/18/95 TR. at p. 6). In fact, at the time of the claimant’s fall on March 24, 1991, the area was engulfed in a snow storm which had began the day before and included a mix of sleet and rain.2 (Corrected Finding 18b). The trial commissioner concluded that the claimant’s March 24, 1991 fall was not caused by his prior accepted injury of April 29, 1985.

The claimant argues on appeal that the trial commissioner’s does not have the authority to grant a motion to correct which changes the outcome of the decision, and that by doing so the trial commissioner improperly acted as his own appellate review. The claimant further argues that § 31-301-4 provides for the correction of findings of fact, but not the correction of a conclusion regarding compensability. We disagree with the claimant’s contention that a motion to correct is this limited in scope.

This board has repeatedly held that a motion to correct need not be granted where the legal conclusion of the commissioner would not be altered by the substituted findings. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). Our Supreme Court has stated that where the requested changes in a motion to correct “would have no impact on the final disposition” therefore the denial of the motion to correct “must be upheld.” Kluttz v. Howard, 228 Conn. 401, 405, fn. 5 (1994). Similarly, the Appellate Court explained that a motion to correct was properly denied because “even if it were corrected as the plaintiff had requested, the commissioner’s ultimate conclusion would not have changed.” Simmons v. Bonhotel, 40 Conn. App. 278, 287 (1996) (emphasis added). The court in Simmons found that the trial commissioner did not abuse his discretion in denying a motion to correct where the facts requested in the motion to correct “were not material.” The court explained, “A material fact is one that will affect the outcome of the case.” Id. at 286 (citations omitted).

The claimant’s contention that a trial commissioner may only grant a motion to correct to change findings of fact but not to change a resulting conclusion would lead to bizarre results. Specifically, if a trial commissioner upon review of a motion to correct decided to change the findings of fact in such a way that the resulting conclusion necessarily changed as a matter of law, it would be absurd to not allow the trial commissioner to change the resulting conclusion. Moreover, we find no merit to the claimant’s contention that “the withdrawal of the appeal by the Respondents was tantamount to a withdrawal of the motion to correct.” (Claimant’s Brief at p. 6). The respondents in the instant case withdrew their appeals after the Motion to Correct was granted on August 23, 1996 because they were no longer aggrieved. The claimant was not aggrieved until the granting of the Motion to Correct, and the claimant filed a timely appeal from that ruling. Pursuant to § 31-301(a), this board has jurisdiction to consider the claimant’s appeal from the Finding and Award as amended by the granting of the Motion to Correct.

It has repeatedly been held that 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).

In the instant case, the record amply supports the trial commissioner’s conclusion that the claimant’s fall on March 24, 1991 was not caused by the prior compensable injury of April 29, 1985. The trial commissioner’s determination was based upon the weight which he accorded the evidence and the credibility of the witnesses. We will not disturb such determinations. See Fair, supra.

The trial commissioner’s decision, as amended by the granting of the Motion to Correct, is affirmed.

Commissioners John A. Mastropietro and Stephen B. Delaney concur.

1 King testified that she “wanted to make sure that his fall on the ice wasn’t because of any long-standing (sic) neurological damage to his back causing his legs to give out.” (10/20/95 Deposition at p. 12). Moreover, King testified that she had “asked pointed questions as to what had caused the fall and he said he had fallen on the ice and that it was not related to his legs giving out or dizziness or anything like that.” (10/20/95 Deposition at p. 16-18). BACK TO TEXT

2 Testimony regarding the weather was provided by meteorologist Arthur Horn. (9/18/95 TR. at p. 73-74). BACK TO TEXT