CASE NO. 3797 CRB-03-98-04
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 16, 1999
WAUSAU INSURANCE COMPANY
The claimant appeared pro se at oral argument.
The respondent-insurer was represented by David D. Chapman, Esq., Law Offices of Larry H. Lewis, 639 Research Parkway, Meriden, CT 06450.
This Petition for Review from the March 23, 1998 Finding and Award of the Commissioner acting for the Third District was heard October 23, 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.
JESSE M. FRANKL, CHAIRMAN. The claimant has filed a petition for review from the March 23, 1998 Finding and Award by the Commissioner acting for the Third District. The trier found in that decision that the claimant sustained a compensable left knee injury and ordered the respondents to pay all appropriate workers’ compensation benefits. The claimant’s claim for a right hip injury was dismissed. The claimant argues on appeal that the commissioner’s latter conclusion is contrary to the evidence, along with his conclusion that the claimant was capable of light duty employment on April 2, 1997. We affirm the trial commissioner’s decision.
The trial commissioner found the following relevant facts. On February 14, 1997 while in the employment of the respondent-employer A.A.I.S., Inc., the claimant sustained a work related left knee injury. The claimant alleged that he tripped and fell, which resulted not only in the knee injury, but in his twisting his right hip and striking his head. Initial medical histories given to Dr. Robert H. Rubino, Dr. Carl B. Lundborg, and St. Raphael’s Occupational Health Center (taken February 15th, 19th, and 17th 1997, respectively) do not indicate that the claimant gave a history of tripping and falling on February 14, 1997. (Findings, ¶ C.). However, the claimant alleged that he told all three doctors that he had injured his knee and hip when he fell. During a subsequent visit to St. Raphael’s Occupational Health Center on February 21, 1997, the claimant informed Dr. Richard Papantonio that on February 14, 1997 he tripped and struck his knee and injured his groin. The claimant was examined by Dr. Gerald F. Cambria on April 2, 1997 and Dr. Peter R. Barnett on May 13, 1997, giving histories that he fell, hitting his left knee and twisting his right hip on February 14, 1997. Drs. Lundborg and Barnett opined that the claimant’s hip injury was not related to his employment, and Dr. Cambria opined that the hip injury was probably not related to the claimant’s work. Upon these findings, the trial commissioner ordered the respondents to pay all appropriate workers’ compensation benefits for the claimant’s left knee injury and dismissed the claimant’s claim for a right hip injury.
We will first address the claimant’s Motion to Submit Additional Evidence. The admissibility of additional evidence is controlled by Administrative Regulations § 31-301-9. Section 31-301-9 states that additional evidence will be admitted if such evidence is material and if there were good reasons for failure to present it at the time of the proceedings before the trial commissioner. The evidence must not only be unavailable at the time of the proceedings, but must be undiscoverable with due diligence. Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 550 CRD-7-87 (Dec. 1, 1988).
The claimant seeks to submit various documents for the purpose of showing that he pursued employment during the course of his injuries and documents to contradict the testimony of Dr. Lundborg. While the additional evidence may in fact be material, the claimant concedes that all of the evidence that he seeks to submit was available at the time of trial. The claimant stated that the reason these documents were not presented at trial was due to the poor performance of the attorney representing him at the time of the proceedings. However, any dissatisfaction the claimant might have with his attorney’s performance is not material to our review of the commissioner’s decision. See Maio v. L. G. Defelice, Inc., 13 Conn. Workers’ Comp. Rev. Op. 197, 1734 CRB-5-93-5 (Mar. 22, 1995), Minneman v. Norwich Board of Education, 2294 CRB-2-95-2 (Dec. 13, 1996). Therefore, the additional evidence having been discoverable at the time of trial and no good reason for the failure to present this evidence at the time of trial having been given, the claimant’s motion to Submit Additional Evidence is denied.
We now turn to the merits of the appeal. The claimant argues that the commissioner erred in finding that he was released to light duty on April 2, 1997. This Board does not retry the facts because the power to determine the facts rests with the trial commissioner. This 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).
The claimant cites the language in Dr. Lundborg’s April 2, 1997 report which states that “[the claimant] is still unable to return to work where he is going to be climbing up and down ladders doing excessive amount of crawling and to do excessive amount of ambulation.” (Claimant’s Exhibit C.) It is the claimant’s assertion that the commissioner erroneously interpreted this statement to mean the claimant was capable of light duty, and that this misinterpretation was contrary to Dr. Lundborg’s “out of work” slips. (Claimant’s Exhibit D.). As was stated earlier, the trial commissioner has the exclusive power to determine what weight to assign evidence. See Webb, supra. In addition, when medical evidence is in conflict, a commissioner’s findings will not be disturbed unless they are unreasonably reached. Bass v. Highway Safety Division, 2 Conn. Workers’ Comp. Rev. Op. 48, 241 CRD-1-83 (1984). In the present case, the trial commissioner placed more weight on the April 2, 1997 statement of Dr. Lundborg rather than the “out of work” slips. It was permissible for him to do so.
The statement by Dr. Lundborg indicates a restriction on a specific type of work activity: work involving ascending and descending ladders, excessive crawling, or excessive ambulation. This statement does not restrict the claimant from performing tasks that do not require the aforementioned activities. It was entirely reasonable for the trial commissioner to infer such an interpretation from the statement. This interpretation is bolstered by the testimony of Dr. Barnett, who stated the claimant was capable of “sedentary work with intermittent periods of standing and walking.” (Respondent’s Exhibit 4, pg. 18). The trial commissioner weighed the evidence, and drew reasonable factual inferences upon such evidence not contrary to law. Therefore, this Board will not disturb his findings. See Fair, supra.
Finally, the claimant argues that the trial commissioner’s conclusion that the right hip arthritic condition was not aggravated by the February 14, 1997 work injury was based upon unreasonable or impermissible inferences. As was stated earlier, Drs. Lundborg and Barnett were of the opinion that the claimant’s right hip injury was not work-related. (Findings, ¶¶ J-K.). Similarly, Dr. Cambria opined that the claimant’s hip injury was probably not work related. (Findings, ¶ M.). The trial commissioner found the opinions of these doctors on this issue to be persuasive, and this Board cannot disturb such factual findings on appeal.
The trial commissioner’s decision is affirmed.
Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.