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Gimmartino v. State of Connecticut/Department of Veterans Affairs

CASE NO. 4150 CRB-06-99-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 9, 2001

ALFRED GIMMARTINO

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPARTMENT OF VETERANS AFFAIRS EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Ronald Lepine, Esq., 106 South Street, West Hartford, CT 06110-1927. Notice also sent to Andrea Melanson, Esq., 110 Hopmeadow Street, Suite 600, Simsbury, CT 06089.

The respondent was represented by Donna Hixon Smith, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 9, 1999 Finding and Award of the Commissioner acting for the Sixth District was heard July 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 9, 1999 Finding and Award of the Commissioner acting for the Sixth District. In that decision the trial commissioner concluded that the claimant sustained a compensable head injury on January 24, 1991, and received treatment for said injury from January 21, 1991 through October 27, 1992. The trial commissioner further found that the claimant did not sustain his burden of proof regarding his claim that his medical treatment subsequent to October 27, 1992 was related to his January 24, 1991 head injury. In support of his appeal, the claimant’s sole contention is that the trial commissioner erred by concluding that the opinion of Dr. Pons lacked credibility. We find no error.

In the instant case, the trial commissioner found that the claimant sustained an injury to his head on January 24, 1991, and that said injury was accepted by the respondent. Previously, on July 26, 1989, the claimant had been in an automobile accident in which he sustained a scalp laceration, along with a right shoulder, lumbar, and cervical injuries. Subsequent to July 26, 1989, the claimant treated with Dr. Katz for complaints which included headaches. On September 25, 1989, Dr. Katz ordered a CT scan of the claimant’s brain which revealed minimal atrophy, but was otherwise negative. The records of Dr. Katz dated June 5, 1990 and July 17, 1990 reference post traumatic headaches.

Following the January 24, 1991 work injury, the claimant was seen by Dr. Katz on March 29, 1991 and October 7, 1991, and did not complain of headaches. However, the claimant subsequently complained of headaches to Dr. Katz on February 19 and February 27, 1992, whereupon Dr. Katz referred the claimant to a neurologist. Dr. Katz again evaluated the claimant for complaints of headaches on October 2, 1992, for which Dr. Katz could offer no explanation, and noted his belief that the claimant was clearly embellishing his complaints related to the January 24, 1991 injury. (Finding ¶ 16). At the request of the respondent, an independent medical examination was performed by Dr. Anderson, a neurologist, who took a history from the claimant wherein the claimant denied any previous headaches or other head injuries.

At issue in the present appeal is the opinion of Dr. Pons, a clinical psychologist who evaluated the claimant on October 6, 1995 as a result of an application for social security disability benefits. Following his October 6, 1995 evaluation, Dr. Pons opined that the claimant had a cognitive impairment disorder and post traumatic major depression. The trial commissioner concluded that the opinion of Dr. Pons was not credible, noting that (1) Dr. Pons was provided with an inaccurate history and was not given any prior medical reports or diagnostic testing, and (2) the “inability to complete the cross examination.” (Finding ¶ E). The trial commissioner found that the claimant “offered no credible opinion from a medical doctor that the January 24, 1991 head injury caused or was a substantial factor in necessitating medical treatment and/or disability subsequent to October 27, 1992….” (Finding ¶ F). The claimant’s sole contention on appeal to this board is that it was an “abuse of discretion” for the trial commissioner to find Dr. Pons’ testimony lacked credibility. We disagree.

A claimant has the burden of proving to the satisfaction of the trial commissioner that he has sustained a compensable injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Freeman v. UTC/Sikorsky Aircraft, 3568 CRB-4-97-4 (June 3, 1998). “As the trier of fact, the commissioner is the sole individual vested with the authority to decide which, if any, evidence is probative, including the testimony of both lay and expert witnesses.” Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000), citing Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 627 (1998), aff’d., 248 Conn. 379 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). “Even where an oral statement or a doctor’s report is not expressly contradicted, the trier may still draw inferences regarding its reliability from the demeanor of the witness, the overall consistency of the testimony, the presence or absence of corroborative empirical evidence, the nature and circumstances of the alleged injury, or any other element of the case that the factfinder deems significant. On review, this board does not have the power to second-guess a trial commissioner’s decision that a particular version of the facts is or is not credible.” Gibbons, supra, citing Freeman, supra; Perry v. Commercial Interior Systems, 3571 CRB-7-97-4 (June 3, 1998).

Here, it was within the discretion of the trial commissioner, as the trier of fact, to assess the credibility of all of the evidence, including the testimony of Dr. Pons, and to determine that the claimant did not sustain his burden of proof regarding his contention that his medical condition after October 27, 1992 was related to his compensable head injury. In his appeal, the claimant is essentially seeking to retry the facts of this case, which this board may not do. When reviewing a trial commissioner’s decision, it is well established that this board “is obligated to hear the appeal on the record and not retry the facts….” Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999) (quotations omitted). In the instant case, the trial commissioner’s conclusion that the claimant’s condition subsequent to October 27, 1992 was not caused by his compensable head injury was based upon the trial commissioner’s assessment of the evidence and is fully supported by the record.

Finally, we note that the trial commissioner chose not to accept as credible the opinion of Dr. Pons based on two factors, the first being that an inaccurate medical history was provided to Dr. Pons, and the second being that the respondent was not able to complete the cross examination of him. We note that the parties fervently disagree regarding the cause of the inability to complete the cross-examination. However, we need not address this issue, as the trial commissioner’s decision is fully supported by his authority to make credibility determinations regarding medical evidence. Furthermore, we note that during the formal hearing the parties agreed with the trial commissioner’s decision that he would “take into consideration… the fact that cross examination was not complete….” (8/24/99 TR. at p. 4).

The decision of the trial commissioner is affirmed.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

Workers’ Compensation Commission

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