State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Bombardier v. CT Valley Fitness Center

CASE NO. 4475 CRB-6-02-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 20, 2002

MICHAEL BOMBARDIER

CLAIMANT-APPELLANT

v.

CT VALLEY FITNESS CENTER

EMPLOYER

and

ROYAL INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Paul Stoughton, Esq., 241 Main Street, Hartford, CT 06106.

The respondents were represented by Lawrence Pellett, Esq., Feeley, Nichols, Chase, McDermott & Pellett, 37 Leavenworth Street, P.O. Box 2300, Waterbury, CT 06722-2300.

This Petition for Review from the January 2, 2002 Finding and Dismissal of the Commissioner acting for the Sixth District was heard July 19, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 2, 2002 Finding and Dismissal of the Commissioner acting for the Sixth District. He contends on appeal that the trier erred by finding that the claimant did not establish a causal connection between his employment conditions and his alleged injury. We find no error, and affirm the trial commissioner’s decision.

The claimant had been employed by the respondent Connecticut Valley Fitness Center since July 1987 as a maintenance worker. On June 6, 2000, he contends that he experienced sensations of lightheadedness, chest pain and breathing difficulty while in the course of his duties. He was transported to Hartford Hospital by ambulance, and kept as an inpatient for two days. The hospital discharge report noted stress at work, and ruled out coronary disease. Medical records also suggested possible anxiety, gastrointestinal or respiratory factors in the etiology of these symptoms. A hospital record, meanwhile, noted that the claimant had a history of asthma, and identified similar symptoms that had occurred while he was playing softball. An August 21, 2000 medical report by Dr. Bedard also recommended minimizing the claimant’s exposure to underventilated or mold-contaminated areas. An environmental testing report noted some contamination of the employer’s premises, but nothing above OSHA standards.

The trier concluded that the evidence adduced by the claimant was insufficient to establish an employment-related incident within a reasonable degree of medical probability. He ordered that the instant claim be dismissed, from which ruling the claimant has appealed. Following the entry of the trier’s award, we observe that the claimant did not file a Motion to Correct pursuant to Admin. Reg. § 31-301-9. Such a motion would have given the trial commissioner the opportunity to reconsider findings that, in the claimant’s opinion, may have resulted from overlooked or misinterpreted evidence. Where a claimant fails to file such a motion, this board is limited in its ability to assess the facts found by the commissioner, as we already lack the power to substitute our own judgment regarding the weight of the evidence for that of the trier. Marcoux v. Allied Signal, 4366 CRB-4-01-3 (Jan. 16, 2002); Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998).

The absence of such a motion is significant here, given the errors that have been raised by the claimant on appeal. He asserts that the trial commissioner incorrectly assumed that the June 6, 2000 incident was the sole alleged cause of his work-related injury, despite his testimony that he continued to experience discomfort working inside his employer’s facility throughout the summer of 2000. The claimant maintains that certain undisputed, material facts were ignored, such as the clear link that Dr. Bedard’s report drew between the claimant’s allergy attacks and his workplace, Dr. Bedard’s opinion that the fitness center needed to improve ventilation in order for the claimant to continue working there, and the directive that the employer’s human resources director gave upon reading Dr. Bedard’s report, in which he told the claimant to remain away from the fitness center and file for workers’ compensation. However, we do not agree with the claimant’s characterization of these matters as undisputed and material facts.

A claimant has the burden of proving that he has sustained a compensable injury in a workers’ compensation case. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). “To illustrate the effect of this burden, if a trial commissioner chose to believe none of the witnesses in a given case, and found all of the documentary evidence to be untrustworthy, the employer would essentially prevail by default.” Id. As the finder of fact, the trial commissioner has the sole authority to decide whether any piece of evidence is reliable, whether it be testimonial or documentary, lay or expert. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This discretion applies even where an oral statement or a doctor’s report is not expressly contradicted, and it allows the trier to credit all, part or none of any doctor’s testimony. Id.; Webb, supra. It also allows the trier to omit facts from his decision that would not impact its outcome given his assessments of credibility. Phaiah, supra; Admin. Reg. § 31-301-3. On review, this board does not have the authority to retry the facts of the case by weighing the evidence anew, and by inserting our own measurements of its relative merit in place of the inferences drawn by the trier. Phaiah, supra; Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001).

We observe that the claimant’s Form 30C lists a date of injury of June 6, 2000, and that he offered testimony regarding that specific incident before adding that he had also experienced less intense episodes through June and July 2000. September 19, 2001 Transcript, p. 8. According to the claimant, he was denied permission to move his office to another location in the fitness center after he received the air sampling report from the testing laboratory on July 18, 2000. Id., p. 28. He explained that he did not want to leave his employment and file a workers’ compensation claim, but that his employer had instructed him to leave the building after being apprised of Dr. Bedard’s August 21, 2000 report. Id., 13, 29.

Jerry Espinosa, a regional supervisor for the Bally Total Fitness Corporation, testified that he had suggested relocating the claimant’s office after he had expressed concerns regarding the ventilation in his room. Id., 32-33. After the claimant left work, Espinosa stated that he also told the claimant that the human resources manager would need a doctor’s note stating that it was safe for the claimant to return to work. Id. Ultimately, he was not taken back after the issuance of that December 11, 2000 doctor’s note, which stated that the claimant was “currently well and able to work,” with the caveat that “unless remedial work has been done to improve ventilation of the ‘underventilated’ areas in that Building he may have recurrent symptoms needing medical care and evaluation. For more specifics see letter of August 21, 2000.” Claimant’s Exhibit E. In that report, Dr. Bedard opined that the claimant evinced a syndrome compatible with “sick building” syndrome, and expected that the claimant would continue to have symptoms in underventilated or moldy rooms unless those work areas had improvements made in their ventilation systems. Claimant’s Exhibit C.

The credibility of the claimant’s testimony and Dr. Bedard’s report are not issues that are susceptible to reversal on appeal as a matter of law, because the acceptance of such evidence is always subject to the scrutiny and discretion of the trial commissioner. Though there may be no report in the record that specifically contradicts Dr. Bedard’s opinion, the commissioner was not required to find it persuasive. Claimant’s Exhibit C. The trier was well within his rights to rule that a compensable injury had not been established within a reasonable degree of medical probability. Also, the fact that the claimant left his employment with the fitness center after allegedly being instructed to do so by the human resources director does not elevate his alleged injury to one that arose out of and in the course of his employment, even if this testimony is believed. Thus, we find no reversible error on the part of the trial commissioner.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

Workers’ Compensation Commission

Page last revised: December 17, 2004

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