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Dubay v. M & R Express

CASE NO. 3847 CRB-01-98-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 2, 1999

FREDERICK J. DUBAY

CLAIMANT-APPELLANT

v.

M & R EXPRESS

EMPLOYER

and

KEMPER GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared on his own behalf.

The respondents were represented by Polly Orenstein, Esq., Law Offices of Michael Brodinsky, 127 Washington Avenue, P.O. Box 35, North Haven, CT 06473.

This Petition for Review from the June 19, 1998 Finding and Dismissal of the Commissioner acting for the First District was heard June 18, 1999 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, John A. Mastropietro, and Ernie R. Walker.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The claimant has petitioned for review from the June 19, 1998 Finding and Dismissal of the Commissioner acting for the First District. In that decision the trial commissioner concluded that the claimant did not sustain his burden of proof regarding his claim that he sustained a left shoulder injury while unloading a truck at work. In support of his appeal, the claimant contends that the trial commissioner erred by relying upon the testimony of the employer’s witness, Christine Miller. In further support of his appeal, the claimant contends that he did not have a “fair and just hearing.” We find no error.

The trial commissioner found the following relevant facts. The claimant was employed as a dock worker with job duties which included unloading trucks. The claimant alleged that on February 3, 1997 he sustained a left shoulder injury while unloading a truck. On that date, the claimant and his co-worker, Paul Hulevitch, were engaged in off-loading a Staple’s truck which was driven by Edward Courtemanche, a Staple’s employee. While removing a pallet, the load appeared unsteady and was about to tip over. The claimant alleged that he, along with others, attempted to steady the load, but that the load tipped over and injured his left shoulder. The respondent employer concedes that the load did tip over. However, the employer contends that the claimant was operating the pallet jack at the time and did not come into contact with the falling load, and thus his shoulder injury was not caused by the incident.

The trial commissioner further found that the claimant’s supervisor, Christine Miller, testified that she was looking out her window and observed that the claimant was operating the pallet jack just prior to the incident. A moment later, she observed the fallen load and saw that the driver had been struck by fallen items but that the claimant was not in the immediate area of the fallen load. She further testified that the claimant was aware of the employer’s accident reporting system and that the claimant had utilized said reporting system on previous occasions. Pursuant to this system, the daily logs were used to note any injuries. The stamped daily log for the week in question did not contain any reference to the alleged injury.1 Christine Miller further testified that immediately after the incident she asked the claimant whether he was injured and that he replied in the negative.

In support of his appeal, the claimant contends that Christine Miller was not truthful in her testimony and that he did not have a fair hearing. 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 decision was based upon the credibility which he accorded the evidence. It was within the discretion of the trial commissioner to find that the testimony of Christine Miller was credible. Moreover, the trial commissioner made numerous other findings which amply support the conclusionthat the claimant was not injured during the incident on February 3, 1997. Specifically, the trial commissioner found that following the incident, the claimant continued to work his entire shift and even assisted in restacking the fallen merchandise. Edward Courtemanche testified that he worked with the claimant on days following the incident, and that the claimant never mentioned a shoulder injury. Furthermore, on his time sheet the claimant wrote, “Did a good job this week” but did not mention an injury. Significantly, the claimant did not seek medical attention until February 11, 1997, and had previously sought medical attention for his left shoulder on January 3, 1997 and October 11, 1996. Accordingly, the trial commissioner’s conclusion that the claimant’s shoulder condition was not caused by the incident on February 3, 1997 was based upon the trial commissioner’s assessment of the evidence and is fully supported by the record.

Finally, we note that the claimant has alleged that he was not provided with a fair hearing. We have carefully reviewed the transcripts in the instant case, and conclude that the claimant was provided with a full and fair opportunity to present his case, and that the claimant’s case was competently presented by legal counsel. The trial commissioner’s decision was clearly based upon his assessment of the evidence and his assessment of the credibility of the testimony, which may not be disturbed by this Board. See Fair, supra.

The trial commissioner’s decision is affirmed.

Commissioners John A. Mastropietro and Ernie R. Walker concur.

1The trial commissioner noted that an unstamped daily log submitted by the claimant did refer to a left shoulder injury. The trial commissioner emphasized the fact that the document offered by the claimant was unstamped. (Finding ¶ 11 and 12). BACK TO TEXT

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