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Barretta v. Thermal Acoustics, Inc.

CASE NO. 4142 CRB-3-99-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 12, 2001

RICHARD BARRETTA

CLAIMANT-APPELLANT

v.

THERMAL ACOUSTICS, INC.

EMPLOYER

and

COMMERCIAL UNION INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Christopher Carveth, Esq., Stevens, Carroll & Carveth, 26 Cherry Street, P.O. Box 432, Milford, CT 06460.

The respondent was represented by James Carroll, Esq., McGrail, Carroll & Faris, 388 East Main Street, Branford, CT 06405.

This Petition for Review from the October 22, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District was heard February 23, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the October 22, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District. In that decision, the trial commissioner found that the claimant sustained an accepted cervical spine injury on September 8, 1980 and that the claimant’s psychiatric disorders were accepted as compensable sequelae of the cervical spine injury. However, the trial commissioner concluded that the claimant’s cardiovascular condition was not compensable, as his angina was merely a symptom of his underlying coronary artery disease which was not related to his employment. In support of his appeal, the claimant contends that it was never his contention that the coronary artery disease was caused by his employment, but that his claim is that his 1989 angina attack was precipitated by stress during an independent medical examination on January 10, 1989 which involved his psychiatric claim. We find no error, and affirm the trial commissioner’s decision.1

Initially, we do not agree with the claimant’s contention on appeal that the issue before the trial commissioner was limited to whether the claimant’s 1989 angina attack was compensable, as opposed to whether the claimant’s underlying cardiac disease was compensable.2 Regarding his contention that his angina was related to his accepted psychiatric condition, the claimant is essentially seeking to retry the facts of this case, which this board may not do. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999).

The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. O’Reilly, supra; McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). Moreover, the trial commissioner’s conclusion is entitled to the same deference as that of a trial judge or a jury on the issue of proximate cause. Burke v. Wal-Mart Stores, Inc., 4037 CRB-2-99-4 (July 11, 2000), citing Rogers v. Laidlaw Transit, 45 Conn. App. 204, 206 (1997). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted).

In the instant case, the evidence in the record, including the opinions of Dr. Lebowitz and to some extent the opinion of Dr. Cohen, amply supports the trial commissioner’s determination that the claimant’s cardiac condition was not caused by his employment or by his prior accepted injuries. Specifically, Dr. Lebowitz opined that although the claimant developed severe psychiatric problems following his cervical spine injury in 1980, and despite the appearance of angina pectoris during a particularly stressful time in his life in 1989, there is nothing in the claimant’s cardiovascular and psychiatric history or in the medical literature to support any causal relationship between the claimant’s accepted injuries or his ongoing stressful experience and the development of coronary heart disease. Finding ¶ 52. Dr. Lebowitz further opined that the claimant had multiple risk factors for the development of coronary heart disease, including heavy cigarette smoking, hypertension and hypercholesteremia, and a strong family history of heart disease, and that “the angina pectoris developed by the claimant in 1989 was the result of longstanding and pre-existing coronary artherosclerosis contributed to by the multiple risk factors.” Finding ¶ 53. Dr. Lebowitz concluded that the claimant’s emotional stress in 1989 merely unmasked the presence of his underlying disease, just as other triggers such as physical exertion, cold weather, or fear might have done. Finding ¶ 54. The doctor thus opined that the claimant’s impairment from coronary heart disease had no causal relationship to his accepted injuries or to his emotional stress.

It was certainly within the discretion of the trial commissioner, as the trier of fact, to accept the medical opinion of Dr. Lebowitz, as it is “the province of the commissioner to accept the evidence which impress[es] him as being most credible and more weighty.” Ferrara, supra, 349. The trial commissioner’s conclusion that the claimant’s episodic incident of angina in January of 1989 was merely a symptom of his underlying coronary disease, which was not compensable, is fully supported by the medical evidence in the record, including the opinion of Dr. Lebowitz. As the trial commissioner’s findings and conclusions are fully supported by the evidence in the record, we must affirm her decision. Ferrara, supra; see also Scrivano v. UTC/Pratt & Whitney, 12 Conn. Workers’ Comp. Rev. Op. 87, 1501 CRB-1-92-9 (Feb. 14, 1994). Moreover, we find no error in the trial commissioner’s denial of the claimant’s Motion to Correct, as the requested corrections are largely based upon credibility determinations, which are the sole province of the trial commissioner, and as a Motion to Correct need not be granted where the requested corrections would not affect the outcome of the case. Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (Jan. 20, 2000).

The claimant’s appeal is hereby dismissed.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 We note that on September 5, 2000 the respondents withdrew their Motion to Dismiss in which the respondents had alleged that the claimant failed to prosecute his appeal with due diligence. However, we note for the first time (as the parties did not bring this issue up at oral argument or in their briefs) that the claimant’s appeal does not appear to have been filed in a timely manner as required by § 31-301(a). The claimant’s appeal was hand-delivered and filed on November 5, 1999, more than ten days after the decision had been issued on October 22, 1999. Generally, the ten-day appeal period of § 31-301(a) begins running on the date that notice of the decision is sent to the parties. The only recognized exception to this time limit applies when an aggrieved party, through no fault of its own, has failed to receive notice of the commissioner’s decision within ten days of the date it was sent. Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999). Here, we recognize that the claimant has not been afforded an opportunity to present arguments regarding the timeliness of his appeal. Thus, although it appears that the claimant has filed a late appeal which must be dismissed pursuant to § 31-301(a), because the timeliness issue was not argued, we will therefore dismiss the claimant’s appeal on the merits. See Duntz v. Ales Roofing & Caulking Co., 3771 CRB-6-98-2 (Dec. 22, 1998). BACK TO TEXT

2 The trial commissioner stated as follows:

COMMISSIONER: ...I understand that the sole issue before me to decide is whether or not the claimant’s cardiovascular problem is related to the compensable injury. Is that correct?

[ATTORNEY] CARVETH: That is correct.

[ATTORNEY] CARROLL: That is correct.

Jan. 26, 1998 Transcript, p. 4. BACK TO TEXT

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