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Boland v. Solar Atmospheres of New England, Inc.

CASE NO. 3673 CRB-08-97-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 19, 1998

JAMES BOLAND

CLAIMANT-APPELLEE

v.

SOLAR ATMOSPHERES OF NEW ENGLAND, INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Richard Lynch, Esq., Lynch, Traub, Keefe & Errante, 52 Trumbull Street, New Haven, CT 06506.

The respondent employer and its insurer were represented by Debra S. Dee, Esq., Law Offices of Nancy Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.

The Second Injury Fund was represented by Michael J. Belzer, Esq., Office of the Attorney General, P.O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.

This Petition for Review from the August 13, 1997 Finding and Award of the Commissioner acting for the Eighth District was heard May 8, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have appealed from the August 13, 1997 Finding and Award of the Commissioner acting for the Eighth District. In that decision the trier concluded that the claimant sustained a compensable myocardial infarction during his employment with the respondent employer. In support of their appeal, the respondents contend1 that the trial commissioner improperly admitted, and relied upon, a medical report written by Dr. Fazzone. In addition, the respondents contend that the evidence does not support the trial commissioner’s determination that the claimant’s myocardial infarction was caused by his employment.

The main issue raised by the respondents is the trial commissioner’s admission of the medical reports by Dr. Fazzone dated June 30, 1995, January 18, 1996, and March 26, 1996, which were the result of an independent medical examination (“IME”) made by Dr. Fazzone at the request of the respondent insurer. The claimant was examined by Dr. Fazzone on June 30, 1995 and March 26, 1996. Dr. Fazzone opined with reasonable medical probability that the claimant’s myocardial infarction on May 27, 1994 was “initiated by the work activities” on that day and the prior day, which aggravated the claimant’s pre-existing heart disease. (Finding No. 22). Dr. Fazzone further opined that the claimant sustained a fifty percent permanent partial disability of the heart, with forty percent attributable to the pre-existing disease and the remaining ten percent attributable to the May 27, 1994 injury. (Finding No. 24).

In support of their argument that the trial commissioner erred in allowing Dr. Fazzone’s reports into evidence, the respondents rely on Lee v. City of Norwalk, 13 Conn. Workers’ Comp. Rev. Op. 23, 1626 CRB-7-93-1 (Nov. 7, 1994). In that decision the board stated:

“It is incumbent upon the employer who requests an IME pursuant to § 31-294f to pay not only for the IME, but also to properly introduce the results of that examination into evidence. Thus, a subpoena or deposition of the examining physician should be arranged by the party seeking to introduce his or her testimony as evidence. To require a claimant to pay for the cost of the subpoena or deposition of an independent examiner in order to cross-examine him would unfairly burden the claimant.”
Lee v. City of Norwalk, 13 Conn. Workers’ Comp. Rev. Op. 23, 25, 1626 CRB-7-93-1 (Nov. 7, 1994).

Subsequently, in Giovino v. Town of West Hartford, 14 Conn. Workers’ Comp. Rev. Op. 74, 1912 CRB 1-93-12 (May 12, 1995), the board explained that the decision in Lee was limited to the specific factual circumstances of that case. In Giovino, as in the instant case, the claimant was the party offering the IME report. The Board explained in Giovino, supra, that:

(T)he party objecting to the medical report is not denied the opportunity to cross-examine a medical witness merely because the party offering the report fails to subpoena the medical witness or conduct a deposition. Rather, the objecting party must act with due diligence by obtaining a deposition or by subpoenaing the medical witness to appear at the formal hearing. If the objecting party chooses not to call the medical witness to testify or to be deposed, he assumes a calculated risk in presenting his evidence, and cannot wait until a decision is reached by the commissioner to complain on appeal that he was not afforded the opportunity to cross-examine the medical witness.
Giovino, supra, at 77.

In the instant case, the medical reports by Dr. Fazzone were the result of two medical examinations conducted at the request of the respondent insurer. At the formal hearing the claimant offered the IME report into evidence. The respondents’ attorneys objected, contending that the claimant had the burden of conducting a deposition of the physician prior to entering the reports into evidence. (5/21/97 TR. at p. 24-25). The claimant’s attorney replied that the claimant did not have the financial resources to depose the physician, but that respondents could do so if they chose. (5/21/97 TR. at p. 26). When the trial commissioner asked the respondents if they wanted a continuance to conduct a deposition, the respondents declined and agreed to close the formal hearing that day. (5/21/97 TR. at p. 52-53).

Accordingly, as the respondents in this case decided not to pursue a deposition or subpoena of Dr. Fazzone, we cannot now find that they were denied due process. Giovino, supra; see also Straub v. Bolt Technology Corp., 9 Conn. Workers’ Comp. Rev. Op. 212, 1130 CRD-3-90-11 (Sept. 12, 1991); Ruh v. Della Construction Co., 9 Conn. Workers’ Comp. Rev. Op. 269, 1034 CRD-7-90-6 (Dec. 5, 1991); Diogostine v. Somers Thin Strip, 3 Conn. Workers’ Comp. Rev. Op. 139, 282 CRD-5-83 (Jan. 22, 1987).

In further support of their appeal, the respondents contend that the evidence does not support the trial commissioner’s determination that the claimant’s myocardial infarction was caused by his work activities. Specifically, the respondents contend that the claimant did not testify that his work activities on May 27, 1995 were strenuous. We find no merit to this argument, as the claimant provided specific testimony regarding his work activities, including a description of how he was loading his car with boxes weighing approximately thirty to forty pounds. (5/21/97 TR. at p. 10-12, 16, and 34-35).

The respondents are essentially requesting that this board retry the evidence, which this board may not do. Rogers v. Laidlaw Transit, Inc., 45 Conn. App. 204, 206 (1997) (per curiam). 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 determined that the claimant’s testimony was credible regarding his description of his strenuous job duties on May 27, 1995, and his immediate symptoms of chest pain and dizziness on that day, which caused him to be rushed to the hospital by ambulance. Moreover, the trial commissioner’s determination is fully supported by the medical opinion of Dr. Fazzone. Where, as here, the commissioner’s determination is based upon the weight and credibility that he has accorded the evidence, we will not disturb such a determination. Dickey v. Harris Graphics, 12 Conn. Workers’ Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994).

This decision of the trial commissioner is affirmed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 We note that the respondent employer and its insurer have not filed a brief in support of their appeal, but rather have chosen to adopt the brief filed by the Second Injury Fund. BACK TO TEXT

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