Smith v. Gary Capiezello d/b/a Consolidated Used Brick

The claimant was represented by Paul M. Guernsey, Esq., Stevens, Harris, Guernsey & Connolly, P.C., 351 Main St., P. O. Drawer 660, Niantic, CT 06357.

Gary Capiezello d/b/a Consolidated Used Brick (Respondent-Employer) made no appearance.

Respondent Second Injury Fund was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the April 20, 1993 Finding and Dismissal of the Commissioner acting for the Second 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. On October 14, 1985 the claimant was employed by Consolidated Used Brick in New London, Connecticut. On that date the claimant sustained a compensable head injury as a result of being assaulted by a fellow employee for which pursuant to Conn. Gen. Stat. § 31-355 the Second Injury Fund paid because Consolidated Used Brick was uninsured. In 1991 the claimant alleged back problems that were also related to the same work related incident. The trial commissioner on April 20, 1993 determined otherwise and held that the claimant had not established by a preponderance of credible evidence that her current back problems were related in any way to the original work injury of October 14, 1985.

On appeal, the claimant argues that the commissioner’s conclusions are not supported by competent evidence and that the commissioner erred in refusing to grant the claimant’s motion to correct. Claimant specifically contends that the commissioner failed to consider that the claimant noted back pain during two hospital visits within the first fifteen months after the work related incident, and that claimant began treatment for her back condition two years earlier than the commissioner had found. We affirm the commissioner’s decision.

Whether an injury arose out of and in the course of employment is a question of fact to be determined by the commissioner after carefully weighing the evidence. Crochiere v. Board of Education, 227 Conn. 333, 346 (1993). If supported by competent evidence and not inconsistent with the law, the commissioner’s inference that an injury did or did not arise out of and in the course of employment is decisive. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Here the commissioner found that despite the convoluted history of her back injury presented by the claimant, she failed to seek treatment for that injury for seven years despite numerous visits to local emergency rooms for various maladies. He also noted that the claimant had sustained bodily injuries in accidents prior to and subsequent to the October 14, 1985 incident. Accordingly, he concluded that the claimant had not established a causal connection between her back ailment and the 1985 work injury. We hold that there was sufficient evidence to support the commissioner’s factual and legal conclusions in this case.

There was no error in the commissioner’s denial of the motion to correct. The significance of the suggested factual corrections sought by the claimant was disputed by the respondents, and the commissioner was entitled to find that they were not both admitted and material. Beninato v. Specialty Framing, Inc., 11 Conn. Workers’ Comp. Rev. Op. 200, 202, 1306 CRD-8-91-9 (1993). Moreover, a commissioner’s factual findings, even if undisputed, will not be altered where the legal conclusion would remain the same despite the correction. Hill v. Pitney Bowes, Inc., 8 Conn. Workers’ Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990). Such is the case here.