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Perry v. Carewell Rest Home

CASE NO. 3713 CRB-03-97-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 29, 1998

JUDITH A. PERRY

CLAIMANT-APPELLANT

v.

CAREWELL REST HOME

EMPLOYER

and

MATHOG & MONIELLO

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Frank M. Grazioso, Esq., 746 Chapel Street, New Haven, CT 06510-3102.

The respondents were represented by Richard Bartlett, Esq., McGann, Bartlett, & Brown, LLC, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the October 20, 1997 Finding of Dismissal of the Commissioner acting for the Third District was heard May 29, 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 claimant has petitioned for review from the October 20, 1997 Finding of Dismissal of the Commissioner acting for the Third District. In that decision, the trial commissioner concluded that the claimant did not sustain her burden of proof regarding her claim that her back condition was caused by an alleged work related incident. In support of her appeal, the claimant contends that the attorney who represented her during the formal hearing process failed to submit crucial evidence, and that this strongly affected the trial commissioner’s decision. The claimant now seeks to have this case remanded for the presentation of additional evidence.

Initially, we will address the respondents’ Motion to Dismiss based upon the claimant’s alleged failure to file Reasons of Appeal. The claimant filed a one-page letter together with her petition for review, and in that letter the claimant states her reasons for appealing the trial commissioner’s decision. We thus deny the respondents’ Motion to Dismiss.

The trial commissioner found the following relevant facts. The claimant was employed as a nurse with the respondent employer on June 27, 1995. The claimant alleged that on June 27, 1995 she sustained a lumbar spine injury when she had to pull and lift trays of food from a dumbwaiter. The claimant alleged that she contacted her family physician, Dr. Levy, on June 29, 1995 and scheduled an appointment for July 11, 1995, but did not provide any documentation to support this contention. Dr. Levy referred the claimant to Dr. Werdiger, a neurologist. Dr. Werdiger obtained a history that the claimant had been experiencing left hip, thigh, and buttock pain for approximately five months. The claimant had pulled her left hip socket and groin when she was helping her disabled father after he fell in February of 1995. The claimant testified that Dr. Levy treated her for the February, 1995 injury, but that she had not injured her back at that time.

On August 9, 1995 the claimant was seen by Dr. Dill, who issued a report on that date which indicated that the claimant had a several month history of back, buttock, and left leg pain which had started in January of 1995. Subsequently, the claimant was examined by Dr. Davey who obtained a history of low back syndrome for many years and acute low back pain on July 3, 1995. On August 21, 1995, the claimant was examined by Dr. Goodrich, who testified that the claimant did not give him a history of a work-related injury. Dr. Goodrich testified that the claimant provided him with a history of left hip and thigh pain commencing January or February of 1995. The claimant underwent surgery on September 1, 1995 after being diagnosed as having a herniated disk by Dr. Dill and Dr. Werdiger. On September 29, 1995, the claimant notified her employer that she was claiming a work-related injury.

In her brief, the claimant seeks a remand in order to present an incident report dated June 27, 1995, and medical reports from Dr. Dill, Dr. Goodrich, and Dr. Hasbani. Additionally, at oral argument before this Board, the claimant emphasized the need to present medical reports from Dr. Levy which had not been submitted as exhibits but were available at the time of the formal hearing. The claimant contends that this evidence was not presented at the formal hearing because the attorney who was representing her at the time of the formal hearing failed to submit this evidence, either by mistake or inadvertence.1 The claimant admits that all of the aforementioned evidence which she now seeks to submit was in existence at the time of the formal hearing. (Claimant’s Brief at p. 7).

This Board has “repeatedly held that it is the claimant’s burden to recognize and resolve any inconsistencies in the evidence at the formal hearing, whether or not those discrepancies seemed significant to the claimant at the time of the hearing.” Liano v. Bridgeport, 3199 CRB-4-95-10 (March 25, 1997), citing Holle v. The William Backus Hospital, 14 Conn. Workers’ Comp. Rev. Op. 169, 2039 CRB-2-94-4 (May 10, 1995); Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-9, 1289 CRD-6-91-9 (Dec. 2, 1992). The claimant has shown no good reason for presenting this evidence after the closing of the formal hearing. All of the evidence, as the claimant concedes, was clearly available to the claimant at the time of the formal hearing, and could have been submitted at that point. See Carr v. Southern New England Telephone Co., 13 Conn. Workers’ Comp. Rev. Op. 21, 22, 1846 CRB-3-93-9 (Nov. 4, 1994). Additionally, any dissatisfaction the claimant may have had with her attorney’s performance is not material to our review of the trial commissioner’s decision. See Maio v. L. G. Defelice, Inc., 13 Conn. Workers’ Comp. Rev. Op. 197, 1734 CRB-5-93-5 (March 22, 1995). We therefore deny the claimant’s Motion to Submit Additional Evidence.

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 trial 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’s conclusion that the claimant’s back condition was not caused by the incident of June 27, 1995 was based upon the trial commissioner’s assessment of the evidence and is fully supported by the record. Specifically, the trial commissioner found that the claimant did not give a history of a work-related injury to Dr. Werdiger, Dr. Davey, Dr. Dill, or Dr. Goodrich. The trial commissioner concluded that the claimant’s “complaints, history and symptoms, which she gave to the various treaters are inconsistent and have failed to establish sufficient evidence to indicate that she sustained a work related back injury on June 27, 1995.” (Paragraph P) (emphasis added).

Moreover, as the claimant did not file a Motion to Correct pursuant to Admin. Reg. § 31-301-4, this board is limited to the trial commissioner’s factual findings on review. Seltenreich v. Stone & Webster 15 Conn. Workers’ Comp. Rev. Op 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996).

The decision of the trial commissioner is affirmed.

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

1 At oral argument before this Board, the claimant contended that the claimant’s attorney at the formal hearing may have inadvertently failed to include certain medical reports, including reports by Dr. Levy, because the claimant’s medical reports were submitted in one black binder (Claimant’s Exh. D). We note that during the formal hearing, upon introduction of Claimant’s Exhibit D, the trial commissioner allowed the parties to take a recess in order to review the contents of the black binder. (10/7/96 TR. at 60). The first section of the binder labeled “Dr. Levy” includes only one report. This May 14, 1996 report indicates Dr. Levy’s opinion that the claimant’s back condition was caused by the June 27, 1995 incident. The binder and the medical reports contained therein are clearly marked, and we find no evidence of confusion during the introduction of said exhibit. BACK TO TEXT

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