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Mendoza v. Cly Del Manufacturing Co.

CASE NO. 3655 CRB-05-97-08

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 28, 1998

JOSE MENDOZA

CLAIMANT-APPELLEE

v.

CLY DEL MANUFACTURING CO.

EMPLOYER

and

ITT HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Ross T. Lessack, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondents were represented by Joseph E. Skelly, Jr., Esq., Edward Henfey & Associates, 55 Farmington Avenue, Suite 500, Hartford, CT 06105

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

This Petition for Review from the July 24, 1997 Finding and Award of the Commissioner acting for the Fifth District was heard January 23, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the July 24, 1997 Finding and Award of the Commissioner acting for the Fifth District. They argue on appeal that the trial commissioner erred by concluding that the claimant’s employment was a substantial factor in aggravating his pre-existing left heel condition. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant began working full-time as a toolmaker on May 21, 1990. He had initially treated for left heel symptoms in the 1980’s, and began treating again with Dr. Dejesus, a podiatrist, on January 26, 1994. He underwent surgery on his left foot about two months later, but continued to experience pain afterward. He told Dr. Dejesus that he was working 12 hours per day, and wanted to cut his hours because the hard floor at work was exacerbating his condition.

The claimant testified that he spent 80 to 90 percent of his work shift standing on concrete floors repairing machines, and occasionally was required to dump a 15-50 pound bucket of parts into a barrel. The claimant’s supervisor, Jan Liquz, testified at the request of the respondents that the claimant actually spent 50% of his work day sitting down, as the machines were all up and running at least 50% of the time. Dr. Dejesus testified that standing on a concrete floor from 50 to 90 percent of his workday would, within a reasonable degree of medical probability, make the claimant’s employment a significant factor in causing him to need surgery. Dr. Schildgen agreed with this diagnosis, but said that if the claimant only stood for about four hours per day and did no significant lifting, then his employment would probably not constitute a significant aggravating cause.

The trial commissioner found that the claimant worked between 42 and 50 hours per week for the employer, and that he was required to stand between 50 and 85 percent of his work day. He also found that the claimant had to lift 15-20 pounds. The trier stated in ¶ D that “[t]he fact that an employer would pay an employee to sit for 50% or in excess of 50% of his work day and do no work is found to be not credible.” He thus concluded that the claimant’s left heel condition was aggravated by his employment, causing him to require surgery. The respondents have appealed that decision.

The respondents argue on appeal that there was no credible evidence that the claimant was required to stand up at work at least 50% of the work day, which is a presumption built into Dr. Dejesus’ diagnosis. They contend that the commissioner’s finding in ¶ D is misplaced, because the employer never stated that the claimant sat around at least 50% of the time doing nothing. The respondents explain that, while sitting down, the claimant observed the machines to ensure everything was operating correctly. They contend that the commissioner’s finding prejudiced their case, and seek reversal of his decision.

In a workers’ compensation case, issues of credibility are the sole province of the trial commissioner. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998). This board may not reverse decisions regarding the credibility of witnesses on review, and may not enter its own findings in place of those of the trial commissioner. Id.; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). A review of Jan Liquz’ testimony reveals no patent error in the commissioner’s recollection of his statements. Liquz indeed testified that a toolmaker such as the claimant often sat for 50% or more of his work shift. Transcript, January 9, 1997, p. 51-52, 61. The respondents made no attempt to explain what, if anything, the claimant would have been doing when he was sitting down, as the only testimony offered regarding his work duties concerned fixing machines and emptying buckets of parts into a barrel. We cannot say that the commissioner erred as a matter of law by interpreting this testimony as he did.

Further, the claimant himself testified that he stood up during 80-90 percent of his work day. Transcript, January 9, 1997, p. 27. The commissioner found in accordance with this testimony in ¶ C of the award. Putting aside the issue of any confusion over the claimant’s work duties while sitting down, the trier was still entitled to find the testimony of the claimant more credible than that of Jan Liquz. Webb, supra; Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). Thus, there would still be adequate support for the commissioner’s decision notwithstanding the error claimed by the respondents.

The trial commissioner’s decision is hereby affirmed.

Commissioners Michael S. Miles and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: June 29, 2005

Page URL: http://wcc.state.ct.us/crb/1998/3655crb.htm

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