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Fiore v. LRT, Inc. d/b/a House & Garden Shop

CASE NO. 3747 CRB-07-97-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 5, 1999

FRANK FIORE

CLAIMANT-APPELLANT

v.

LRT, INC. d/b/a HOUSE & GARDEN SHOP

EMPLOYER

and

GAB BUSINESS SERVICES

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared on his own behalf.

The respondents were represented by B.T. Canty, Esq., Kerin & Canty, 5 Mott Avenue, Norwalk, CT 06850.

This Petition for Review, together with a Motion to Submit Additional Evidence, from the December 9, 1997 Finding Of Dismissal of the Commissioner acting for the Seventh District was heard August 21, 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 claimant has petitioned for review from the December 9, 1997 Finding of Dismissal of the Commissioner acting for the Seventh District. In that decision the trial commissioner concluded that the claimant’s breathing problems, occupational asthma, or reversible airway dysfunction (RADS) were not caused by his employment. In support of his appeal, the claimant seeks to retry the facts of his case, and contends that the trial commissioner erred in his assessment of the credibility of the witnesses. The claimant has also submitted a 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 breathing condition was not caused by his employment with the respondent employer was based upon the trial commissioner’s assessment of the evidence and is fully supported by the record. Specifically, the trial commissioner chose to rely upon the opinion of Dr. Gerstenhaber, a pulmonary specialist, who conducted an independent review of the claimant’s medical records. Dr. Gerstenhaber opined that the claimant’s breathing problems were not caused by his working conditions. The trial commissioner chose not to rely upon the opinion of the claimant’s treater, Dr. Bouboulis, who opined that the claimant’s condition was caused by grinding metal blades at work. We have repeatedly held that it is within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of the physician who conducted an independent medical examination than to the opinion of the claimant’s treater. Sherman v. Construction & General Laborers Union Local 390, 3056 CRB-5-95-5 (Jan. 8, 1997), (citing Hawley v. Shell Oil Co., 13 Conn. Workers’ Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995)).

In support of his appeal, the claimant disputes the trial commissioner’s assessment of the credibility of various witnesses. However, it was within the discretion of the trial commissioner, as the trier of fact, to consider all of the testimony and to assess the credibility of the witnesses. See Webb, supra. We conclude that the trial commissioner’s decision is fully supported by the evidence, including the testimony and medical reports of Dr. Gerstenhaber.

In support of his Motion to Submit Additional Evidence, the claimant seeks to present sketches of the floor plan of the respondent employer’s place of business. 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. City of 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 close of the formal hearing. The evidence which the claimant seeks to submit 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). We therefore deny the claimant’s Motion to Submit Additional Evidence.

The decision of the trial commissioner is affirmed.

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

Workers’ Compensation Commission

Page last revised: April 8, 2005

Page URL: http://wcc.state.ct.us/crb/1999/3747crb.htm

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