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Nieves v. SCM Company

CASE NO. 3317 CRB-6-96-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 9, 1997

FRANCISCO NIEVES

CLAIMANT-APPELLEE

v.

SCM COMPANY

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

CNA INSURANCE CO.

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by William C. Rivera, Esq., 17 Walnut St., New Britain, CT 06051.

The respondent employer and Liberty Mutual were represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

The respondent employer and CNA were represented by Howard Levine, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main St., West Hartford, CT 06107.

These Petitions for Review from the April 2, 1996 Findings of Facts and Award of Compensation of the Commissioner acting for the Sixth District were heard January 10, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. Both of the respondent insurers have petitioned for review from the April 2, 1996 Findings of Facts and Award of Compensation of the Commissioner acting for the Sixth District. They argue on appeal that the trier erred by failing to credit the opinion of the doctor who examined the claimant pursuant to a § 31-294f order. We affirm the trial commissioner’s decision.

Section 31-294f C.G.S. allows a commissioner to direct an injured employee to undergo a medical examination. The trier normally orders an examination when the evidence is in conflict, or when he believes that it is insufficient to make a determination. The parties usually expect that such an exam will provide the trier with strong guidance. Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995).

As the assessor of the weight to be accorded all medical evidence, however, the trial commissioner is not absolutely bound to credit any given report. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This board will not encroach upon the fact-finding authority of a commissioner to decide which evidence is the most credible simply because the commissioner ordered one of the medical examinations. Although we have stressed that a commissioner should articulate the reasons behind a decision to disregard a § 31-294f examiner’s opinion, the ultimate decision is always with the commissioner. Iannotti, supra; compare Gillis v. Waterbury Construction, 15 Conn. Workers’ Comp. Rev. Op. 131, 2182 CRB-5-94-10 (Jan. 17, 1996) (CRB remanded case to trier for articulation where the reports of all doctors, including a commissioner’s examiner, stated that the claimant’s need for surgery was due to pre-existing arthritis, but the trier found surgery compensable without discussing the § 31-294f exam).

In this case, the commissioner noted that Drs. Kruger, Krompinger, and Rossi all opined that the claimant was at least a reasonable candidate for a lumbar discectomy, even though his prognosis was less optimistic than usual. Dr. Robinson also stated that surgery was an option if conservative treatment failed, although his prognosis as to such surgery was guarded. Only Dr. Ballon had strong reservations against surgery for the claimant. The commissioner found that the claimant’s surgery was reasonable and necessary, and that it had been authorized by Dr. Krompinger, the treating physician. He specifically found that the opinions of the doctors favoring surgery were more persuasive than those of the doctors opposing it.

A look at the exhibits in the record shows that Dr. Rossi stated that “in spite of the less than optimal likelihood of success with surgery, it is really his only option.” (Claimant’s Exhibit 20.) Dr. Krompinger agreed with Dr. Rossi that this was the best procedure for the claimant. (Claimant’s Exhibit 19.) These medical reports constitute sufficient evidentiary support for the commissioner’s findings and conclusions, and we may not disturb them on review. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Iannotti, supra; Webb, supra.

Ideally, the commissioner should have discussed his disregard for Dr. Ballon’s reports in greater depth, in light of the traditional role that a § 31-294f exam has in workers’ compensation proceedings. Iannotti, supra. This is an exception to the general rule of Admin. Reg. § 31-301-3 that a commissioner’s finding need not contain the reasons for his conclusions. However, we disagree with the respondents’ insinuation that the opinion of a commissioner’s examiner automatically reaches the apex of credibility simply because the commissioner chose that doctor to see the claimant. The decisionmaker in any case is not the medical examiner; it is the trialcommissioner. There is no legal presumption of credibility for any expert witness in a workers’ compensation case, even one who the parties assume is acting as a “tiebreaker” for the commissioner. As there is sufficient evidence in the record to support the trial commissioner’s findings in this case, we find no error here.

Commissioners James J. Metro and John A. Mastropietro concur.

Workers’ Compensation Commission

Page last revised: June 13, 2005

Page URL: http://wcc.state.ct.us/crb/1997/3317crb.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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