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Weiss v. Chesebrough Ponds

CASE NO. 3392 CRB-3-96-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 23, 1997

LISABETH WEISS

CLAIMANT-APPELLEE

v.

CHESEBROUGH PONDS

EMPLOYER

and

SEDGEWICK JAMES OF CONN.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Carolyn Comerford, Esq., 78 Fern Circle, Trumbull, CT 06611.

The respondents were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the July 24, 1996 Finding and Award of the Commissioner acting for the Third District was heard April 4, 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. The respondent employer and its insurer (hereinafter “respondents”) have filed a petition for review from the July 24, 1996 Finding and Award of the trial commissioner acting for the Third District. In that decision the trial commissioner found that the claimant sustained bilateral carpal tunnel syndrome which was caused by her employment. In support of their appeal, the respondents contend that the trial commissioner’s conclusion regarding causation is not supported by the findings of facts or by the evidence in the record.

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 trial commissioner found that the claimant was employed as a customer service representative for the respondent employer from 1989 through September 16, 1993, when she developed symptoms of bilateral carpal tunnel syndrome. As a customer service representative the claimant was required to use a keyboard and a ten key calculator. (Finding No. 15). The claimant testified that she could not provide an average number of keystrokes because that number varied depending upon the types of inquiries she received over the telephone. (5/8/95 TR. at p.18). Specifically, the claimant testified that her position required her to input data order changes, update orders, check items in an order, expedite and trace orders, and record changes and credits. (Finding No. 16; 5/8/95 TR. at p. 12-18 and 52-59). On the other hand, the respondents’ witnesses, including the claimant’s supervisor, testified that the claimant’s position as a customer service representative required only minimal keyboard usage. In reaching his conclusion that the carpal tunnel syndrome was caused by the claimant’s job duties, the trial commissioner chose to credit the claimant’s testimony regarding her job duties. It was within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the claimant’s testimony than to the respondents’ witnesses. Webb, supra.

We next address the respondents’ contention that the medical evidence is not sufficient to support causation. The trial commissioner’s conclusion that the claimant’s carpal tunnel syndrome was caused by her employment is fully supported by the record, including the opinion of Dr. Goldstein, the claimant’s treating physician. Dr. Goldstein opined that the claimant suffered from bilateral carpal tunnel syndrome which was “more likely work-related after having had the type of work that she (has) described.” (Respondents’ Exh. 6). “It was within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of Dr. Goldstein than to the opinion of other physicians who examined the claimant. Hawley v. Shell Oil Co., 13 Conn. Workers’ Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995).

Moreover, we do not agree with the respondents’ contention that Dr. Goldstein’s opinion is not reliable because it is based upon the claimant’s oral history regarding her work duties. The trial commissioner heard testimony from the claimant and made findings regarding her work duties. Accordingly, the trial commissioner was entitled to infer that the claimant conveyed to Dr. Goldstein the same description of her work duties. If the respondents doubted this, they could have deposed Dr. Goldstein. We will not disturb the trial commissioner’s determination which is based upon the weight and credibility that he has accorded the evidence and which is supported by the record. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 801 (1996).

The trial commissioner’s decision is affirmed. Interest is awarded pursuant to § 31-301c(b) on any benefits unpaid during the pendency of this appeal.

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/1997/3392crb.htm

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