Ciarleglio v. D.I. Chapman Company

The claimant was represented by Laurence V. Parnoff, Esq., 1566 Park Ave., Bridgeport, CT 06604.

The respondents were represented by James Moran, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430.

This Petition for Review from the June 8, 1994 Finding and Award of the Commissioner acting for the Third District was heard November 17, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the Finding and Award of the Commissioner acting for the Third District. In that decision, the trial commissioner found that the claimant sustained a compensable injury to his back on November 17, 1986. The trial commissioner concluded that the claimant’s injury did not render him unable to work, and thus denied the claimant’s request for temporary total disability benefits pursuant to § 31-307 C.G.S. The claimant contends on appeal that the commissioner improperly denied the claimant temporary total disability benefits despite evidence that the claimant was unable to perform his usual work, and thus was unemployable. We affirm the trial commissioner’s decision.

In support of his appeal, the claimant contends that the medical testimony of Dr. Engels and Dr. Carpenos indicates that the claimant is totally disabled. In addition, the claimant argues that the undercover investigation submitted by the respondents does not prove that the claimant is capable of performing some types of employment. Essentially, the claimant is seeking to retry his case, which this board will not do. Moreover, as the claimant has not filed a motion to correct, we are limited to the findings of the trial commissioner, Bell v. U.S. Home Care, 13 Conn. Workers’ Comp. Rev. Op. 294, 1792 CRB-1-93-8 (April 21, 1995) (citing Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994)); see also Vanzant v. Hall, 219 Conn. 674, 681 (1991).

Section 31-307 C.G.S. provides benefits when a compensable injury results in a claimant’s “total incapacity to work.” Whether a claimant is totally disabled from working is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). We will not disturb the commissioner’s factual determination unless his conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In the instant case, the trial commissioner found that following his November 17, 1986 injury the claimant continued working until his business closed due to financial difficulties on July 27, 1987. Moreover, the trial commissioner found that the claimant’s civil law suit with a bank was the cause of seventy percent of his mental stress, and was the cause of his inability to accept an employment offer. (Findings No. 27, 38, and 39). The trial commissioner found that the testimony of both Dr. Engels and Dr. Carpenos indicate that the claimant is capable of light duty work. In addition, a surveillance investigation revealed the claimant performing light duty work at his wife’s restaurant. (Finding No. 42).

We have consistently held that it “is the trial commissioner, as the trier of facts, who determines with finality the credibility of the witnesses and the weight to be accorded their testimony.” Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 349, 1675 CRB-2-93-3 (July 29, 1994) (citations omitted). Where evidence is in conflict, the trial commissioner’s conclusion must stand so long as there is evidence to support it. Pulcinella v. Prudential Insurance Company, 10 Conn. Workers’ Comp. Rev. Op. 251, 1236 CRD-6-91-5 (January 11, 1993). We conclude that the trial commissioner’s determination that the claimant was not eligible to receive benefits pursuant to § 31-307 C.G.S is fully supported by the record. Accordingly, we will not disturb the commissioner’s determination. See Fair, supra.

The trial commissioner’s decision is affirmed and the claimant’s appeal is dismissed.