Madden v. Moore Special Tool

CASE NO. 1688 CRB-4-93-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 12, 1994

ANTHONY MADDEN

CLAIMANT-APPELLANT

v.

MOORE SPECIAL TOOL

EMPLOYER

and

AETNA LIFE & CASUALTY CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Linda Dufney, Esq. and John C. Kucej, Esq., 95 North Main Street, Waterbury, CT 06702.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton and Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the May 20, 1993 Post-Remand Finding and Award of the Commissioner for the Fourth District was heard March 25, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE FRANKL, CHAIRMAN. We previously remanded this case for further proceedings in light of an erroneous declaration of fact in paragraph 9 of the original Finding and Award dated March 13, 1989. See Madden v. Moore Special Tool, 9 Conn. Workers’ Comp. Rev. Op. 107, 208, 834 CRD-4-89-3 (1991). On remand, the trial Commissioner (1) deleted the reference in paragraph 9 to the results of a myelogram which, in fact, was never performed and (2) reaffirmed his other findings and conclusions as originally set forth in that March 13, 1989 Finding and Award. At issue in the present appeal is the commissioner’s determination that the claimant was not totally disabled from November 1, 1987 to May 16, 1988.

The claimant’s argument that the commissioner’s denial of benefits “could not be sustained without the benefit of a myelogram” is without merit. The medical opinion evidence before the commissioner was in conflict regarding the claimant’s ability to work. Where, as here, the medical evidence was in conflict regarding the extent of the claimant’s incapacity to work, the trial commissioner’s conclusion must stand. See Dusto v. Rogers Corporation, 1496 CRB-1-92-8 (decided February 4, 1994): Pulcinella v. Prudential Insurance Co., 10. Conn. Workers’ Comp. Rev. Op. 251, 1236 CRD-6-91-5 (1993).

The claimant’s attempt to discount the probative force of the evidence supporting the commissioner’s decision is nothing more than an attempt to have us retry the facts. The commissioner is the trier of the facts and “determines with finality the credibility of the witnesses and the weight to be accorded their testimony.” (internal quotation marks omitted.) Miller v. Kirshner, 225 Conn. 185, 198 (1993) ; State v. Robinson, 213 Conn. 243, 256 (1989). As the commissioner’s conclusion was not without evidentiary support, contrary to law or based on unreasonable or impermissible factual inferences, it must stand on appeal. Fair v. Peoples Savings Bank, 207 Conn. 535, 539 (1988).

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.