Maglieri v. Incorporated Construction, Ltd.

CASE NO. 1947 CRB-1-94-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 20, 1995

MICHAEL MAGLIERI

CLAIMANT-APPELLANT

v.

INCORPORATED CONSTRUCTION LTD.

EMPLOYER

and

MASSACHUSETTS BAY INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Henry Kroeger, Esq., 57 Pratt Street, Hartford, CT 06103.

The respondents were represented by Andrew J. Hern, Esq., Gordon, Muir & Foley, 10 Columbus Blvd., Hartford, CT 06106.

This Petition for Review from the January 3, 1994 Finding and Dismissal of the Commissioner acting for the First District was heard December 16, 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 claimant has petitioned for review from the trial commissioner’s Finding and Dismissal dated January 3, 1994, which dismissed the claimant’s claims for two alleged injuries. In his decision, the trial commissioner concluded that the claimant’s claim for an injury which occurred on May 27, 1988 was filed untimely. In addition, the trial commissioner concluded that the claimant was not credible regarding his allegation that he suffered an injury while at work on January 19, 1990. In support of his appeal, the claimant contends that the trial commissioner improperly disregarded both a medical report which supported the issue of causation regarding the alleged January 19, 1990 injury and an office note which appears to indicate that the claimant made a medical appointment on that day. We affirm the trial commissioner.

At the formal hearing, the claimant testified that he injured his shoulder on January 19, 1990 when, with other workers, he lifted a pipe which was between twelve and fifteen feet long. The trial commissioner found that the claimant did lift the pipe on that date. However, the trial commissioner specifically found that the claimant’s testimony that he was injured during the incident was not credible. The trial commissioner determines with finality the credibility of the witnesses and the weight to be accorded their testimony. See Busak v. Stamford, 12 Conn. Workers’ Comp. Rev. Op. 291, 292, 1562 CRB-7-92-11 (June 8, 1994). The trier of fact is free to believe some, all, or none of the claimant’s testimony. Id.

The medical report which the claimant refers to in his appeal brief, (Claimant’s Exhibit 9), is based upon the claimant’s verbal history to the physician regarding the lifting incident on January 19, 1990. Under the circumstances in this case, because the trial commissioner determined that the claimant did not suffer an injury on January 19, 1990, the medical report regarding causation is not determinative. In addition, the note regarding a medical appointment allegedly made on January 19, 1990 is not determinative of the issue of whether an injury occurred on that date. Moreover, that note was offered as “Claimant’s Exhibit 14 for identification only” but was never offered as a full exhibit and therefore should not be considered by this Board.

Whether the trier erred in finding that the claimant’s injury arose out of and in the course of his employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). In the instant case, the commissioner’s determination that the claimant did not suffer an injury on January 19, 1991 while lifting a pipe is adequately supported by the record.

The trial commissioner’s decision is affirmed.

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