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Scharf v. Town of Seymour

CASE NO. 4767 CRB-5-03-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 15, 2005

THOMAS SCHARF

CLAIMANT-APPELLANT

v.

TOWN OF SEYMOUR

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by David J. Morrissey, Esq., Morrissey & Morrissey, 203 Church Street, P. O. Box 31, Naugatuck, CT 06770.

The respondent was represented by Robert Nastri, Esq., Tinley, Nastri, Renehan & Dost, 60 North Main Street, Second Floor, Waterbury, CT 06702.

This Petition for Review from the December 18, 2003 Finding and Dismissal of the Commissioner acting for the Fifth District was heard January 21, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the December 18, 2003 Finding and Dismissal of the Commissioner acting for the Fifth District. He contends on appeal that the trial commissioner erred by finding that the heart attack he suffered four months after his retirement from the police force was not compensable pursuant to § 7-433c C.G.S. We find no error, and affirm the trial commissioner’s decision.

The claimant began his employment as a regular member of the respondent Town of Seymour’s Police Department from 1985. At that time, he passed a physical examination that revealed no evidence of heart disease or hypertension. He voluntarily retired on June 30, 2000, and began receiving a normal pension based upon his age and years of service. His medical file shows that he made numerous complaints of injuries over the term of his police career, but there was no recorded mention of either hypertension or any type of cardiac disease during that period of time.

The claimant suffered a myocardial infarction on November 9, 20001. His cardiologist, Dr. Taikowski, opined that the heart attack was caused by long-standing coronary artery disease that probably preceded the attack by several years. The claimant attempted to claim benefits pursuant to § 7-433c. The trial commissioner found that the claimant’s heart attack occurred while he was no longer a regular member of the paid municipal police department, as he had retired four months earlier. The trier also found that Dr. Taikowski’s opinion was not convincing in light of the medical history in the claimant’s medical file. The claim was therefore dismissed, and the claimant’s subsequent Motion to Correct was also denied by the trial commissioner. The claimant has petitioned for review from that dismissal.

The claimant argues that Dr. Taikowski’s undisputed medical opinion establishes that the claimant suffered from coronary artery disease prior to his retirement from the police force on June 30, 2000. Dr. Taikowski stated in an October 23, 2001 report, “It is my firm belief that prior to Mr. Scharf’s aborted myocardial infarction of November 2000, Mr. Scharf clearly had coronary disease. This is usually a long-standing illness and likely preceded his acute coronary event by several years.” Claimant’s Exhibit E. The claimant argues that the trier had no valid ground to disregard this report, absent any contrary evidence. The claimant then reasons that the recognized test of “disability” in our law is whether an individual suffers from a physical impairment, as opposed to an inability to earn a wage. See Salmeri v. Dept. of Public Safety, 70 Conn. App. 321 (2002); Karutz v. Feinstein & Herman, P.C., 59 Conn. App. 565, 569-70, cert. denied, 254 Conn. 949 (2000). Based on Dr. Taikowski’s report, the claimant maintains that, during his term of employment with the police department, he suffered from a “disability” within the meaning of § 7-433c.

We remind the claimant that the trial commissioner is not required to give credence to any medical opinion, even if it appears to be uncontradicted by other evidence. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). A trier’s determination of evidentiary credibility cannot be overridden on appeal by this board. Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670, 673, 676-77 (2003); Duddy, supra. It is the duty of this board on review to give deference to the inferences drawn from the evidence by the trier of fact, as long as they can be rationally supported by the contents of the record. Duddy, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001).

After considering Dr. Taikowski’s opinion, the trier found it unconvincing in light of the contents of the claimant’s medical file. There is no mention in that file of any symptoms of hypertension or heart disease during the claimant’s term of employment. Findings, ¶¶ 4, C. Our review of the exhibits shows this to be an accurate representation of the evidence. The first mention of any symptoms of heart disease in the claimant’s records was on November 9, 2000, the date of the claimant’s alleged injury.

Whether or not this board would have found Dr. Taikowski’s report credible in spite of the claimant’s medical file is not the issue here on appeal. It was the trier of fact’s prerogative to draw inferences from the evidence, and the trier found it significant that Dr. Taikowski’s opinion was not corroborated by any indication of symptoms related to heart disease or hypertension during the claimant’s term of employment. As a trial commissioner is never bound to rely on any particular medical report, we must respect the impressions drawn by the trier here. Therefore, we uphold the trial commissioner’s finding that Dr. Taikowski’s medical opinion was not persuasive. In light of that ruling, we need not entertain the claimant’s analysis of the scope of the term “disability” in § 7-433c, as the issue is now moot.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

1 The trial commissioner’s Finding and Dismissal cites an injury date of November 13, 2003. This is a typographical error, as the parties stipulated on the record that the date of the claimant’s cardiac event was November 9, 2000. October 30, 2003 Transcript, p. 6. We will overlook this inaccuracy on appeal, and use the correct date of injury, as this is our practice with regard to scrivener’s errors. Palma v. Manuel A. Pinho Landscaping, 4047 CRB-7-99-5 (July 18, 2000). BACK TO TEXT

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