State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Mikishka v. City of Meriden

CASE NO. 3869 CRB-08-98-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 3, 1999

JAMES A. MIKISHKA

CLAIMANT-APPELLEE

v.

CITY OF MERIDEN

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Brian Prucker, Esq., Fitzgerald & Prucker, 212 Talcottville Road, Route 83, Vernon, CT 06066.

The respondent was represented by James Quinn, Esq., Furniss & Quinn, P. C., Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.

This Petition for Review from the July 20, 1998 Finding and Award of the Commissioner acting for the Eighth District was heard March 26, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the July 20, 1998 Finding and Award of the Commissioner acting for the Eighth District. It argues on appeal that the trier erred by finding that the claimant suffered a compensable injury, and by awarding him benefits for scarring under § 31-308(c). We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant was employed by the respondent on January 18, 1996, when he sustained a compensable burn injury to his scalp. The claimant testified, and the trier so found, that he was by himself, painting, on the date of his injury when he struck the top of his head on a hot pipe while standing up from a stooped position. He continued to have difficulties with the burn afterward, and was left with a permanently discolored scar 4” long and one inch wide. As the top of the claimant’s head is bald, this scar is very visible. The trier specifically accepted the claimant’s story, and rejected the testimony of the respondent’s witnesses, who had essentially testified that the claimant was not telling the truth, and that he never suffered a burn in the workplace. He awarded the claimant 13 weeks of benefits for scarring, which decision the respondent has appealed.

In a workers’ compensation case, it is axiomatic that the trial commissioner is the finder of fact, and the sole arbiter of the credibility of the evidence presented. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). He alone decides how much weight should be afforded to the testimony of lay and expert witnesses, even if the substance of their remarks is uncontradicted. Id.; Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). The claimant bears the responsibility of proving to the trier’s satisfaction that he has sustained an injury arising out of and in the course of his employment, and that this injury is the cause of whatever disability or impairment he claims. Herman v. Sherwood Industries, Inc., 244 Conn. 502, 505-506 (1998); Pallotto, supra. Whether or not the claimant succeeds in that respect, on review this board does not attempt to retry the case. We will uphold a commissioner’s findings unless they are unsupported by the evidence, or unless they fail to include undisputed material facts. Id. Further, we may amend the legal conclusions drawn from the subordinate findings by the trial commissioner only if they have been produced by an incorrect application of the law, or by an inference illegally or unreasonably drawn from the underlying facts. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The respondent contends on appeal that the claimant failed to meet his burden of proving that he suffered a compensable injury, and supports its argument by adducing various alleged inconsistencies in the record. To succeed in its effort, the respondent must demonstrate that a reasonable person could not have concluded from the evidence in the record that the claimant was telling the truth about the origin of the scar atop his head. Its primary theme of attack is the supposed unreliability of the claimant’s testimony. His injury was not witnessed by anyone else, he did not receive immediate medical treatment, and his testimony regarding his reporting of the injury conflicts with the statements of certain co-workers. Additionally, the medical records allegedly disclose that the claimant was initially treated for a different wound than that which produced this scar.

The claimant’s testimony does conflict with the testimony of some of the other witnesses, none of whom claimed to remember the details of the claimant’s injury. However, this conflict was resolved by the trial commissioner, who specifically found—as was his province—that the claimant’s testimony was credible, and that of the other witnesses was not. Findings, ¶¶ 6, 13. This means, in more detail, that the claimant’s initial confusion surrounding the date of injury, and his failure to complete a written report of the incident, created issues of fact that were permissibly resolved in his favor by the trier. The fact that no one witnessed the incident itself does not, as a matter of law, lessen the weight of the claimant’s testimony.

With respect to medical treatment, the claimant testified that he only saw Dr. Perricone one time following his scalp injury. Transcript, 17. Dr. Perricone reported that the claimant was seen on July 30, 1996 with “a lesion on the scalp secondary to a burn from hot pipe at work,” and diagnosed “fibrosis consistent with a scar.” Claimant’s Exhibit A. No medication was prescribed. Two years later, on May 7, 1998, Dr. Perricone responded to an inquiry from the respondent by stating that the claimant’s lesion “was in the mid-parietal occipital scalp line.” He described it as a one-centimeter scar that was not disfiguring in his opinion. Respondent’s Exhibit 1. The doctor also stated that he was not aware of any other incident that could have caused a scalp lesion. The claimant offered no other medical reports to substantiate his claim.

The trial commissioner observed that the claimant had a 4” disfiguring scar over the top of his head. The respondent maintains that this cannot be the product of the same lesion observed by Dr. Perricone, as a one-centimeter cicatrix over the occipital bone cannot reasonably be confused with a four-inch scar on top of one’s head. Though the trial commissioner did not explicitly comment upon this discrepancy, the atrophic plaque described by Dr. Perricone in 1996 could have progressed to a more visible scar by the time the trial commissioner observed the claimant’s scalp at the April 28, 1998 formal hearing. This is assuming, of course, that the trier found Dr. Perricone’s description of the scar to be reliable. It is noteworthy that, in November 1996, a different commissioner described the marks as very visible, reddish, irregularly-shaped blotches. This could indicate that they were beginning to grow larger, or that they were inaccurately portrayed by the dermatologist. Whichever of those inferences the trier drew, this board does not have the authority to disturb his conclusion on appeal.

The respondent also observes that, pursuant to § 31-308(c), the commissioner can not make a scarring or disfigurement award earlier than one year after the date of injury, or later than two years after said injury “or the surgery date of the injury.” The claimant’s date of injury, though initially (and erroneously) reported to be January 18, 1995, was found to be January 18, 1996. The respondent (briefly) argues that, because the formal hearing was held on April 28, 1998, his award of 13 weeks of scarring benefits is beyond the two-year time period contemplated by § 31-308(c), and is thus improper under the statute. Moreover, he also brings up the fact that the original commissioner’s November 9, 1996 award would have been made too early under the terms of § 31-308(c). That scarring award, which was also for 13 weeks of benefits, was withdrawn by agreement of the parties after the true date of injury was revealed to be January 18, 1996.

We note, however, that the respondent initially refused to pay the November 9, 1996 award, and filed an appeal from that decision. After the original commissioner withdrew the award a few months later, the claimant requested another scar evaluation hearing on March 4, 1997, just over a year after the date of injury. Subsequently, notices were sent out by this Commission for a pre-formal hearing on July 22, 1997, and a formal hearing on December 30, 1997. The subject of those hearings was to be the evaluation of the claimant’s scar. At the request of the trial commissioner, the December 30, 1997 formal hearing was rescheduled for April.

We do not believe that, given those circumstances, it would be appropriate to allow the respondent to claim the statute of limitations as a defense. The claimant should not be held responsible for delays in the decisionmaking process caused by other parties, or the system itself. This is particularly so where the 1996 award and the 1998 award prescribed the same amount of disfigurement, thus suggesting little change in the severity of the claimant’s scarring, and no measurable prejudice to the respondent.

The trial commissioner’s decision is thus affirmed. Insofar as any amounts due the claimant have not been paid by the respondent pending the outcome of this appeal, interest is awarded to the claimant pursuant to § 31-301c(b).

Commissioners Angelo L. dos Santos and John A. Mastropietro concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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