Odom v. Sawyer Industrial Services D/B/A Maine Coastal Services

The claimant was represented by Robert B. Keville, Esq., Suisman, Shapiro, Wool, Brennan & Gray, P.C., The Courtney Building, 2 Union Plaza, P. O. Box 1591, New London, CT 06320.

The respondents were represented by James F. Powers, Esq., Law Offices of Larry Lewis, 639 Research Parkway, Meriden, CT 06450.

This Petition for Review from the August 19, 1994 Finding of Dismissal of the Commissioner acting for the Third District was heard May 5, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 19, 1994 Finding of Dismissal of the Commissioner acting for the Third District. He argues on appeal that the trial commissioner erroneously concluded that the claimant did not suffer a compensable repetitive trauma injury to his lumbar spine. We affirm the trial commissioner’s decision.

The commissioner found that the claimant was employed by the respondent on May 1, 1989, October 19, 1989, June 21, 1990, and July 9, 1990. He originally claimed injuries to his spine and left elbow arising out of a work-related accident on May 1, 1989. In a Finding and Dismissal dated July 8, 1992, the commissioner determined that the claimant did not submit timely notice of claim pursuant to § 31-294 C.G.S., nor did he meet any of the exceptions to the notice requirement. Thus, the claim was dismissed. Administrative notice of that Finding and Dismissal was taken by the trial commissioner. We note that Paragraph 10 of that decision states that the claimant alleged a repetitive trauma injury to his lumbar spine, and that he maintained his date of injury should be June 21, 1990, when he became totally disabled. We also note that the claimant’s appeal from the July 8, 1992 decision was withdrawn.

The claimant filed a Form 30C on January 6, 1993, alleging a back injury due to repetitive trauma prior to October 19, 1989. He sought temporary total and permanent partial disability benefits, as well as payment of medical bills. However, he testified that he did not do heavy lifting between May 1, 1989 and October 19, 1989, as his work duties consisted of “tank watching.” The commissioner also cited Dr. Browning’s medical opinion that the claimant’s lumbosacral disc bulges were caused by a May 1, 1989 traumatic injury. The respondents argument that res judicata applied to the back injury was not addressed by the commissioner in his findings, as he determined that the medical evidence was inconsistent and that the claimant had failed to prove a repetitive trauma injury. Therefore, the claim was dismissed.

The claimant argues that Dr. Browning first saw him in October 1989, and that his job duties during May and June of 1990 worsened the condition of his back. He claims that Dr. Browning’s undisputed testimony supports this assertion. Although the doctor testified that, in his opinion, the claimant’s work activities between May 1989 and October 1989 worsened the condition of his back (Jan. 13, 1994 Transcript, p. 14), the first time he saw the claimant was on October 19, 1989. Thus, his opinion was based largely on the history the claimant provided to him.

The commissioner found, however, based on the claimant’s own testimony that the claimant’s work activities after the initial May 1, 1989 injury did not involve heavy lifting. (See Jan. 7, 1994 Transcript, p. 46-47). It was not unreasonable for him to conclude from this evidence that the claimant’s work activities after May 1, 1989 did not substantially affect his back condition, and that he did not suffer a repetitive trauma injury. The trial commissioner, and not this board, is charged with determining the credibility of witnesses and making findings of fact from which to draw his conclusions. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The occurrence of an injury is the epitome of a factual issue, and we will not disturb the commissioner’s conclusion in that regard.