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Menard v. People’s Bank

CASE NO. 3887 CRB-02-98-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 23, 1999

TAMMY MENARD

CLAIMANT-APPELLANT

v.

PEOPLE’S BANK

EMPLOYER

and

RELIANCE INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Brian K. Estep, Esq., Conway & Londregan, 38 Huntington Street, P.O. Box 1351, New London, CT 06320-1351.

The respondents were represented by Andrew J. Hern, Esq., Gordon, Muir & Foley, 10 Columbus Boulevard, Hartford, CT 06106.

This Petition for Review from the August 21, 1998 Finding and Dismissal of the Commissioner acting for the Third District was heard April 30, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The claimant has petitioned for review from the August 21, 1998 Finding and Dismissal of the Commissioner acting for the Third District. In that decision the trial commissioner found that the claimant failed to sustain her burden of proof that she suffered an injury to her back while at work on June 24, 1997. In support of her appeal, the claimant argues that she presented “uncontradicted medical evidence” regarding her alleged injury. We find no error.

The trial commissioner found the following relevant facts. On June 24, 1997, the claimant was employed by the respondent employer. She testified that while working at her teller station on that date, she twisted to her left in order to receive a report off of her printer directly in back of her chair. She testified that she felt a pull in her lower back as a result of that action. The claimant testified that her chair would not turn with her when she turned around. The claimant testified that the swivel chair which was admitted into evidence was a fair and accurate representation of the chair which she was using at the time of the alleged injury. The trial commissioner found that it would be difficult for the occupant of the chair to turn in the chair without the chair “joining in the motion.” (Finding ¶ 10).

The claimant testified that on June 25, 1997, she made a report of her back problem to William Campbell. Mr. Campbell testified that the claimant told him that her back problems might have been caused by her commute, but that at no time did she tell him anything about the incident with the chair. The claimant was examined by Dr. Jones, who wrote in his report that the claimant provided a history of the incident as follows: “… left buttock pain with backache developed acutely at work on June 24, 1997 during the early afternoon while standing over a photo copy machine. As she twisted her body to receive the printout, she claims she experienced an excruciating pain on the lower left side of her back….” (Finding ¶ 17). The trial commissioner found that the claimant’s deposition testimony which describes no pain at the time of the alleged incident directly contradicted the doctor’s report of immediate pain. Moreover, the trial commissioner found further inconsistency in that the report from Dr. Jones’ indicates that the claimant was standing whereas the claimant testified that she was sitting.

Furthermore, the trial commissioner found that during periods of time when the claimant alleges that she was totally disabled from working in any capacity, she was engaged in conduct which was inconsistent with her claimed disability. Specifically, videotapes introduced by the respondents show the claimant engaged in physical activities on July 5, 1997 and July 7, 1997. The claimant’s physical abilities in these videotapes dramatically contrast the claimant’s presentation of her physical disabilities and pain during her medical visits. (See Findings ¶ 26-40).

“The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” Spatafore v. Yale University, 239 Conn. 404, 418 (1996). 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).

On appeal, the claimant contends that it was error for the trial commissioner to disregard the medical evidence presented by the claimant in light of the fact that the respondents did not present any medical evidence. We find no error. The Appellate Court has repeatedly explained that the trier “is not required to accept uncontradicted expert testimony. The [trier] might reject it entirely as not worthy of belief or find that the opinion was based on subordinate facts that were not proven.” Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996) (citation omitted; emphasis added). Because it was the claimant’s burden to prove that she sustained a compensable injury, and she did not do so in this case, it is of no moment that the respondents did not present any medical evidence. See Reeder v. Zohne Industries, 3313 CRB-5-96-3 (August 21, 1997), aff’d., 49 Conn. App. 904 (1998)(per curiam).

Furthermore, the claimant contends that it was error for the trial commissioner to base her decision on the surveillance videos, because the claimant contends that said videos are misleading as the claimant felt less pain when she took medication. We find no error, as it was within the discretion of the trial commissioner to determine the relevancy of the evidence. Swaggerty v. Mattie’s Service Station, 3378 CRB-6-96-7 (February 3, 1998); Mulroy v. Becton Dickinson, 15 Conn. Workers’ Comp. Rev. Op. 455, 458, 2295 CRB-8-95-2 (Sept. 6, 1996).

In the instant case, the trial commissioner’s decision was based upon the credibility which she accorded the evidence, including the testimony of the claimant, which she found to be inconsistent and lacking in credibility. In essence, the claimant is asking this board to retry the facts of the case and overturn the trial commissioner’s credibility assessments, which this board may not do. The trial commissioner’s decision is amply supported by the findings and by the evidence in the record, and as such it must stand.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: April 8, 2005

Page URL: http://wcc.state.ct.us/crb/1999/3887crb.htm

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