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Cartier v. National Graphics, Inc.

CASE NO. 4115 CRB-3-99-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 21, 2001

BRAD T. CARTIER

CLAIMANT-APPELLEE

v.

NATIONAL GRAPHICS, INC.

EMPLOYER

and

UTICA MUTUAL INSURANCE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Charles Tiernan, III, Esq., Lynch, Traub, Keefe and Errante, P.C., 52 Trumbull Street, P.O. Box 1612, New Haven, CT 06506.

The respondents were represented by G. Randall Avery, Esq., and John A. Cassone, Esq., 25 Third Street, Stamford, CT 06905.

This Petition for Review from the August 18, 1999 Finding and Award by the Commissioner acting for the Third District was heard August 25, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Leonard S. Paoletta and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the August 18, 1999 Finding and Award by the Commissioner acting for the Third District. They contend that the trier erred by ruling that the claimant sustained a compensable back injury. We find no error.

The trial commissioner found that the claimant was employed by the respondent employer from June of 1994 through January of 1997, and that until April of 1996 his duties included driving a limousine. The claimant drove a limousine for the employer two to three days per week, and during these trips he would occasionally have to lift luggage. When he was not driving the limousine, he worked in the office, where his duties involved shipping samples of printed materials, moving samples, collecting samples and cutting paper, and at Thanksgiving time he would lift boxes that weighed approximately 40 pounds. The trial commissioner further found that the limousine which the claimant drove had a defective seat which aggravated the claimant’s pre-existing degenerative lumbar disc disease. In November of 1995, the claimant was examined by Dr. Christoforo for complaints of a stiff back. The claimant did not indicate a work injury at that time. In April of 1996, the claimant was no longer able to drive the limousine due to back pain.

The claimant’s treating physician, Dr. Christoforo, ordered an MRI of the claimant’s back on January 8, 1997. The MRI indicated a diffuse bulge extending slightly to the left mid line at L4-5 with a disc protrusion of L5-S1. On February 10, 1997, Dr. Christoforo opined that the claimant’s back problem was related to the claimant’s employment as a driver because he had to sit for long periods of time in uncomfortable positions. In February of 1997, the claimant filed a Notice of Claim alleging that he had sustained a back injury due to driving for long periods and also due to the defective seat. Dr. Christoforo referred the claimant to Dr. Connair, an orthopedic surgeon, on March 24, 1997. Dr. Connair is of the opinion, based upon reasonable medical probability, that the claimant’s symptoms are caused entirely or significantly by the trauma the claimant sustained in his work with the respondent employer.

The trial commissioner concluded that the claimant sustained a compensable back injury by aggravating his pre-existing degenerative lumbar condition by driving the company vehicle for long distances with a defective seat. The respondents have appealed that decision. We have repeatedly held that determining whether an injury arose out of and in the course of employment is a question of fact for the trial commissioner. Crochiere v. Board of Education, 227 Conn. 333, 346 (1993). When this board considers an appeal from a commissioner’s decision, we do not try the facts de novo. Id., 347. The trial commissioner is the sole arbiter of the weight of the evidence, and it is the province of the trial commissioner, as the trier of fact, “to accept the evidence which impress[es] him as being most credible and more weighty.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 349 (1999) (citation omitted). We must uphold the trial commissioner’s conclusions unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Id.

In support of their appeal, the respondents contend that the trial commissioner erred in denying their Motion to Correct which they contend included “undisputed material facts.” (Respondents’ Brief at 2). We disagree. The two findings which the respondents allege to be undisputed clearly involved conflicting testimony. Where a party’s requested corrections pertain to the credibility of the witnesses, the trial commissioner is not required to grant those corrections. Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 627 (1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). First, the respondents contend that the trial commissioner erred by finding that the claimant’s office duties included occasional lifting of up to 40 pounds. This finding is supported by the claimant’s testimony. See 5/11/98 Transcript at pp. 7-9. Secondly, the respondents contend that the trial commissioner erred in denying their Motion to Correct regarding the finding that the driver’s seat was defective. Again, this determination was made by the commissioner after hearing conflicting testimony. It was clearly within the discretion of the trier to accept the claimant’s testimony on this issue.

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

Commissioners Leonard S. Paoletta and Amado J. Vargas concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

Page URL: http://wcc.state.ct.us/crb/2001/4115crb.htm

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