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Dudley v. Wadsworth Glen

CASE NO. 3942 CRB-08-98-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 14, 1999

ERIC DUDLEY

CLAIMANT-APPELLANT

v.

WADSWORTH GLEN

EMPLOYER

and

EBI INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared on his own behalf.

The respondents were represented by Robert J. Enright, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon CT 06066.

This Petition for Review from the December 4, 1998 Finding and Award of the Commissioner acting for the Eighth District was heard May 21, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 4, 1998 Finding and Award of the Commissioner acting for the Eighth District. In that decision the trial commissioner found that the claimant sustained temporary and self-limiting compensable injuries on May 31, 1997 and July 22, 1997. The trial commissioner found that the claimant was temporarily totally disabled from May 31, 1997 to June 9, 1997, and for a six-week period commencing July 22, 1997. In support of his appeal, the claimant reiterates his arguments made during the formal hearing that his current symptoms are related to his injuries of May 31, 1997 and July 22, 1997, and that these symptoms make it difficult for him to work. We find no error.

We will first address the claimant’s Motion to Submit Additional Evidence, in which the claimant seeks to present a tape recording of Dr. Moeckel. 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 the tape recording of Dr. Moeckel, with whom he had been treating prior to the date of the formal hearing. The claimant could have obtained the testimony of Dr. Moeckel prior to the close of the formal hearing, or requested a continuance in order to do so. 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.

The trial commissioner found the following relevant facts. The claimant was employed with the respondent employer as a nurse’s aid on May 31, 1997 and July 22, 1997. Prior to May 31, 1997, the claimant had several injuries, particularly to his back, and received substantial amounts of treatment. The claimant’s testimony conflicted with the medical records in regards to the nature and extent of the pre-existing injuries. On May 31, 1997, the claimant injured his left knee when he struck a metal post. The claimant was treated by Dr. Fisher, an orthopedist, who opined that the claimant’s knee was not in need of treatment, that the claimant could work his regular job duties, and that the claimant would probably not have any permanent disability. The claimant was unhappy with Dr. Fisher’s opinion and went on to see other doctors regarding his left knee.

The trial commissioner further found that the claimant returned to work, and claims to have hurt his back while pushing a wheelchair on July 22, 1997. The claimant was diagnosed with a lumbar strain by Dr. Patten. The claimant on his own began treating with a chiropractor, and also treated with other doctors for his back. (Finding ¶ 21-22). Dr. Spinella performed an examination of the claimant at the request of the trial commissioner, and concluded that the claimant’s back problem stemmed from his pre-existing condition and injuries and would not increase a previously ascribed 10% permanent partial disability rating. Dr. Spinella further concluded that the claimant’s knee problem had resolved itself and did not require further treatment.

“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. 408, 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).

In his appeal, the claimant repeats his argument made during the formal hearing that his injuries prevent him from working. We have repeatedly held that whether a claimant is totally disabled from working is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). In the instant case, the trial commissioner found that the claimant was unable to work from May 31, 1997 to June 9, 1997 and for six weeks after his July 22, 1997 injury. The trial commissioner thus awarded temporary total disability benefits for those periods pursuant to § 31-307. The medical evidence supports the trial commissioner’s determination that the claimant’s injuries of May 31, 1997 and July 22, 1997 were self-limiting and did not affect his ability to work beyond those periods of time.

In the instant case, the trial commissioner’s decision was based upon the credibility which he accorded the evidence, including the medical evidence and the testimony of the claimant. 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 medical evidence in the record, and as such it must stand.

Additionally, in his brief the claimant objects to the trial commissioner’s refusal to authorize Dr. Moeckel as a treating physician under § 31-294d. Although § 31-294d(b) allows a claimant to choose his own treating physician, this language refers only to the initial selection of a physician following an injury. See Zering v. UTC/Pratt & Whitney, 3321 CRB-6-96-4 (Aug. 8, 1997). Subsequent changes of physician must be authorized by the trier pursuant to § 31-294d(c), who has considerable discretion to grant or deny such changes. Dichello v. Holgrath Corp., 15 Conn. Workers’ Comp. Rev. Op. 441, 445, 2249 CRB-5-94-12 (Sept. 5, 1996), affirmed, 49 Conn. App. 339 (1998). In the instant case, the claimant was initially treated by Dr. Patten and Dr. Amato at an occupational health clinic, and when he expressed dissatisfaction he was referred to Dr. Fisher. The claimant was unhappy with Dr. Fisher’s opinion and went, without a referral from Dr. Fisher, to see other medical care providers. We find no abuse of discretion in the trial commissioner’s refusal to retroactively authorize those other medical care providers.

Finally, we will address the claimant’s contention that he was not given a “fair trial.” We have carefully reviewed the transcript, and conclude that the claimant was provided with a full and fair opportunity to present his case.

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/1999/3942crb.htm

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