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Sargent v. Jim Rybczyk Plumbing & Heating

CASE NO. 1660 CRB-6-93-3

CASE NO. 1974 CRB-6-94-2



JANUARY 31, 1995











The claimant was represented by Neil Johnson, Esq., 250 Hudson Street, Hartford, CT 06106 on 1660 CRB-6-93-3. The claimant appeared pro se on 1974-CRB-6-94-2.

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

This Petition for Review from the February 26, 1993 Finding and Award and the February 16, 1994 Supplemental Finding and Award of the Commissioner acting for the Sixth District was heard June 24, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.


JESSE M. FRANKL, CHAIRMAN. The claimant has filed petitions for review from two separate findings and awards of the Sixth District Commissioner. The first concerns the commissioner’s refusal to grant certain portions of the claimant’s motion to correct the Finding and Award dated February 26, 1993. The second is a pro se appeal concerning the commissioner’s February 16, 1994 Supplemental Finding and Award of fees due the claimant’s attorney. We affirm both of the commissioner’s awards.

The claimant suffered a work-related back injury on December 3, 1989, which necessitated surgery in July of 1991. Dr. Ballon, the claimant’s treating physician through August 16, 1991, reported on September 11, 1991 that, in his opinion, the claimant would remain totally disabled until “approximately the beginning of October.” Dr. Horn, the claimant’s treating physician from August 17, 1991 until September 30, 1992, subsequently reported that the claimant would not be capable of light duty work until June 15, 1992. The commissioner determined that the claimant had reached maximum medical improvement on August 18, 1992 and had sustained a 17.5 percent permanent partial disability of his back. The commissioner also found, however, that the claimant had not been forthright with his doctors regarding the extent of his incapacity. He found, as per Dr. Ballon’s report, that the claimant had a work capacity at the beginning of October 1991. The claimant challenges the propriety of the latter finding.

“‘The commissioner has the power and duty, as the trier of facts, to determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima v. UAC/Norden Division, [177 Conn. 107, 118, 411 A.2d 924 (1979)]. . . .’ Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991).” Romanski v. West Hartford, 34 Conn. App. 307, 316 (1994). It is the commissioner’s prerogative to deny a motion to correct the findings unless the corrections offered consist of admitted or undisputed material facts that would have an effect upon the ultimate conclusion of the commissioner. Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994).

The commissioner was entitled to credit the medical opinion of Dr. Ballon, who had been the claimant’s treating physician until several weeks before the date of the report cited in the findings. The commissioner was not required to include in his findings the contradictory opinion of Dr. Horn. Although the opinion of a treating physician is certainly important, the commissioner may choose to believe the diagnosis of a different physician based on his authority to determine the credibility of witnesses and evidence. This Board may not substitute its own factual inferences for those of the commissioner where, as in this case, there is sufficient evidence to support the commissioner’s conclusions. Fair v. People’s Savings Bank, 207 Conn. 535, 541 (1988). The fact that the claimant’s work capacity was projected into the near future does not mean that the commissioner could not rely on it in Dr. Ballon’s report. The Finding and Award dated February 26, 1993 is thus affirmed.

The pro se claimant appealed the commissioner’s award of attorney’s fees to the claimant’s attorney. The commissioner found that a fee agreement existed between the claimant and his attorney entitling counsel to twenty (20%) percent of all benefits received by the claimant as a result of counsel’s efforts. The commissioner further found that the claimant’s efforts resulted in the $41,600 award of specific indemnity benefits that this Board affirmed above. The commissioner thus ordered the Second Injury Fund to pay $400 per week directly to claimant’s counsel until he has received twenty (20%) percent of the $41,600 award ($8,320).

It is the responsibility of the appellant to provide this Board with an adequate record for review. See Practice Book § 4061. Here, the claimant has not placed a copy of the fee agreement in the record, nor has he provided any support for his allegation that the $400 weekly payment ordered by the commissioner was improper because it caused him financial hardship. In light of our decision affirming the underlying award, there is simply no evidence in the record that would cause this Board to overturn the commissioner’s award of attorney’s fees. We thus affirm the commissioner’s Supplemental Finding and Award of February 16, 1994.

The trial commissioner is affirmed.

Commissioners Nancy A. Brouillet and Michael S. Miles concur.

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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