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CASE NO. 1955 CRB-3-94-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 11, 1995
OFFICE FURNITURE DEPOT
ITT HARTFORD INSURANCE CO.
SECOND INJURY FUND
The claimant appeared pro se at oral argument.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.
The Second Injury Fund was represented by Richard R. Hines, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the January 12, 1994 Finding and Award of the Commissioner acting for the Third District was heard February 24, 1995 before a Compensation Review Board panel consisting of Commissioners Roberta S. D’Oyen, Amado J. Vargas and Linda Blenner Johnson.
ROBERTA S. D’OYEN, COMMISSIONER. The claimant has petitioned for review from the January 12, 1994 Finding and Award of the Commissioner for the Third District. In this appeal, she argues that the commissioner made improper findings and conclusions on remand from this board’s decision in Fiore v. Office Furniture Depot, 10 Conn. Workers’ Comp. Rev. Op. 15, 1093 CRD-3-90-8 (Dec. 27, 1991). We affirm the trial commissioner’s decision.
The claimant sustained a compensable lumbar spine injury on October 19, 1987 when she slipped and fell on newly painted stairs. Although she received compensation pursuant to a voluntary agreement, she sought an adjustment to her compensation rate based on additional wages she claimed were legally due. She also sought reimbursement for dental bills that she attributed to the injury. The trial commissioner refused to consider the first claim on the ground that only actual wages received should be used in calculating a claimant’s compensation rate, and dismissed the second claim as well.
On appeal to this board, we reversed the commissioner’s decision. We held that it was improper for the commissioner not to consider the claimant’s argument that her compensation rate was incorrect. “Here, if in fact that claimant had worked on Sunday. . . she was by law entitled to overtime pay from her employer. Section 31-310 . . . refers to ‘total wages received.’ The law often presumes that what should have been done has been done. In this case, such a presumption would have entitled the claimant to have the overtime pay included in the calculation of her compensation rate.” Id., 17. Thus, we held that the claimant should be given the opportunity to establish her claim that she was entitled to overtime pay, and remanded the case for further proceedings. We also instructed the commissioner to reexamine his finding regarding the dental bills, as it seemed to be based solely on the voluntary agreement, which was partially derived from inconsistent or mistaken facts. Id., 16-17.
Significantly, we did not order the commissioner to find that the claimant was entitled to all overtime pay alleged, nor that she was entitled to the payment of her dental bills. This board does not have the power to make factual findings, as that is the prerogative of the trial commissioner. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995); Ettienne-Modeste v. Town of Bloomfield, 1789 CRB-1-93-9 (decided April 26, 1995). It is always the duty of the commissioner to decide which evidence and testimony are the most credible, and whether a particular piece of evidence is trustworthy or should be disregarded. Webb, supra; Ettienne-Modeste, supra. When we review the commissioner’s findings, we do not retry the facts or hear evidence. Instead, we will uphold findings supported by the evidence, and will uphold the conclusions drawn by the commissioner from those findings unless they result from an incorrect application of the law to the facts or from an inference unreasonably or illegally drawn from them. Webb, supra, citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
In this case, the commissioner originally had not even considered the evidence regarding overtime pay because he believed that it would be irrelevant as long as the claimant had not actually received those wages. We held otherwise, and ordered him to consider the claimant’s argument on remand and make findings as to what pay, if any, she was actually entitled to for those overtime hours. The claimant still had the burden of proving that those sums were due, however. Our holding simply told the commissioner that it was legally possible for the claimant to succeed on her claim, not that she had established her entitlement to that compensation. In fact, it would have been beyond our authority to do otherwise in this situation. See Uva v. Valleries Transportation Service, Inc., 13 Conn. Workers’ Comp. Rev. Op. 106, 107-108, 1625 CRB-7-93-1 (Jan. 30, 1995).
A similar analysis applies to the claimant’s claim that her dental bills were related to her work injury. We held that the commissioner’s finding was based on inadequate evidence, specifically the voluntary agreement. We did not hold, however, that the claimant had already established the causal relationship between her dental treatment and her compensable injury. Again, such a holding would have been beyond our authority.
On remand, the commissioner found that the claimant’s personal records indicated that she worked two Sundays, and earned commissions of $123.28. He concluded that the claimant’s total earnings “are the wages received as indicated on the W2 form, the commissions earned as indicated on the 1099 form and $240.00 for the two Sundays that the claimant worked.” He adjusted her compensation rate accordingly. Also, the commissioner found that the claimant had not sustained her burden of submitting medical evidence that she sustained dental injuries when she fell on October 19, 1987. He thus dismissed that claim. Contrary to the claimant’s argument, it was appropriate for the commissioner to make further findings as to these matters. As discussed above, we did not, and could not, order specific findings to be made on those factual issues.
The claimant had the burden of proof of establishing both her claim for additional wages and her claim for dental bills to the commissioner. With respect to the former claim, the commissioner was not required to rely on the testimony of Frank Lis, the employee who hired the claimant, and who testified that “to the best of [his] knowledge, she worked every Sunday,” in evaluating the claim for overtime pay. The commissioner was entitled to draw his own conclusion from the sales invoices and the Form 1099 offered by the claimant. From the record, we cannot say that his conclusion from the evidence presented was incorrect. We firmly disagree with the claimant that her wage claim was “clearly proved” in such a manner as to constitute a legal certainty.
As to the latter claim for dental bills, the only objective evidence offered by the claimant to link her dental problems with the compensable injury was the notation “Td” on the October 19, 1987 hospital report. The claimant cites this as proof that she received a tetanus shot for her mouth injuries. This is weak evidence, however, that her dental injuries occurred as alleged, and the commissioner was not legally required to hold that it satisfied the claimant’s burden of proof on that issue. Also, the medical report offered by the claimant from Dr. Tartagni was dated over one year after the injury, and described her dental injuries as “apparently sustained in a fall.” Again, this is not indisputable proof that the injury occurred as alleged. On review, we are not in a position to second-guess the commissioner’s conclusions as to the credibility of this evidence.
The trial commissioner’s decision is affirmed.
Commissioners Amado J. Vargas and Linda Blenner Johnson concur.
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