Colello v. Dresser Industries, Inc.

The claimant was represented by Steven H. Cousins, Esq., Cousins & Johnson, 2563 Main St., Stratford, CT 06497.

The respondents were represented by Kevin J. Maher, Esq., Maher & Williams, P. O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the April 2, 1993 Finding and Award of the Commissioner acting for the Fourth District was heard April 8, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents petitioned for review from the April 2, 1993 Finding and Award of the Fourth District Commissioner. They contend on appeal that the commissioner’s finding of compensability and assessment of permanent partial disability are not legally supported by the facts. We affirm the trial commissioner.

In determining the nature and degree of the claimant’s injury, the trial commissioner based his decision on the testimony of the claimant and the medical reports of two treating physicians. He found that the claimant was injured in the course of his employment and that the claimant suffered a five percent permanent partial disability of his lumbar spine as a result of that injury. Respondents protest that the medical reports were based not on objective findings, but on the claimant’s subjective complaints of back pain, and that inconsistencies in the claimant’s testimony rendered him an untrustworthy witness. They argue that, being primarily based on the claimant’s testimony, the commissioner’s award was thus improper. We disagree.

It is the function of the trial commissioner and not this Board to determine the credibility of the witnesses. Cholewinski v. Brake Systems, Inc., 6 Conn. Workers’ Comp. Rev. Op. 105, 601 CRD-4-87 (1989). The commissioner was entitled to believe the claimant’s testimony if it was credible in his judgment. Similarly, he was entitled to assess the weight and credibility of the medical reports. The degree to which the physicians relied on the claimant’s “subjective complaints” in diagnosing his injury is debatable from the record, and we will not second-guess the commissioner’s judgment on that issue. We note, though, that it is not impermissible as a matter of law for a doctor to take into account a patient’s declarations that he is in pain in making a diagnosis. Given this evidence, we can not say that the commissioner drew an unreasonable or illegal inference from the subordinate facts in finding the claimant’s injury compensable or in assigning him a five percent permanent partial disability rating. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).