Seltenreich v. Stone & Webster Engineering Corp.

The claimant was represented by Sharyn D’Urso, Esq., 35 Elm St., New Haven, CT 06510.

The respondents were represented by Margaret E. Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the October 17, 1994 Finding of Dismissal of the Commissioner acting for the Third District was heard June 9, 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 October 17, 1994 Finding of Dismissal of the Commissioner acting for the Third District. He argues on appeal that the trial commissioner improperly failed to find certain material facts that would have established the compensability of his claimed injury. We affirm the trial commissioner’s decision.

The claimant, an instrumentation specialist for the respondent employer, was bending tubing with a tubing bender when he allegedly felt pain in his left arm and shoulder. The claimant testified that he was uncertain as to the exact date of injury, and at different times identified August 11, August 15, and August 24, 1988, as the date of injury. He also reported that he worked a half day on the date of injury, although personnel records do not indicate that the claimant worked a partial day at any time during August, 1988. The claimant alleged that he saw Dr. Katz the day after he was injured. Dr. Katz diagnosed a rotator cuff tear of the left shoulder on August 25, 1988, although he noted at that time that the claimant identified the date of injury as August 15, 1988. (Claimant’s Exhibit C.) He later changed that diagnosis to a herniated cervical disc after performing an EMG and a CT scan.

The claimant was then referred to Dr. Opalak, who diagnosed a herniated cervical disc at C4-5, and surgically removed the disc on June 21, 1989. (Claimant’s Exhibit D.) Dr. Opalak stated that the history given to him by the claimant regarding his use of the tubing bender, if accurate, would definitely explain the injury to the claimant’s neck. (Claimant’s Exhibit K, p. 17.) However, Dr. Levy, an orthopedic surgeon who examined the claimant at the respondent’s request, opined that it was improbable that the claimant’s disc rupture was caused by his use of the tubing bender. (Claimant’s Exhibit E.)

Focusing on the confusion surrounding the date of injury and the claimant’s termination by the respondent employer in September, 1988 for personnel reasons, the trial commissioner concluded that the claimant did not sustain his burden of proof that he suffered a work-related injury. The claimant has appealed from that decision, challenging the commissioner’s failure to make certain factual findings and arguing that he ignored the weight of the medical evidence.1

First, we note that the claimant failed to file a Motion to Correct with the trial commissioner. The failure to seek correction of the commissioner’s findings limits this board to those findings on review. Wright v. Institute of Professional Practice, 1790 CRB-3-93-8 (April 18, 1995); Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994); Administrative Regulation § 31-301-4. Therefore, we must assume that the findings made in this case are accurate. The only question left for us to answer is whether the law was applied correctly to those facts, or an illegal inference was drawn from them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The ultimate conclusion drawn by the trial commissioner was that the claimant did not sustain his burden of proof as to the occurrence of a compensable injury. Even with a Motion to Correct, our review of this particular claim of error would have been limited, because evaluating the credibility of the evidence and the testimony provided by witnesses is the peculiar domain of the trial commissioner. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995); Administrative Regulation § 31-301-8. This board cannot tell a commissioner which doctors he should have relied on and which party’s story sounds more believable. If a trial commissioner decides that a claimant’s testimony or a doctor’s medical report is suspect, we have no power to reverse his decision.

The fact that the claimant did not file a Motion to Correct creates an extra barrier between this board and a review of the commissioner’s findings. The claimant’s allegation that the trial commissioner failed to include undisputed and material facts in his decision cannot be maintained on appeal, because no correction of the findings was sought. Administrative Regulation § 31-301-4. All we can say at this point is that the findings regarding the confusion over the date of injury and the medical report of Dr. Levy provide support for the trial commissioner’s findings in this case.

The trial commissioner’s decision is affirmed.

Commissioners Roberta S. Tracy and Amado J. Vargas concur.

1 The respondents filed a motion to dismiss the appeal based on the claimant’s failure to file a brief with proper diligence pursuant to Practice Book § 4055. Our ruling on the merits makes it unnecessary for us to address this motion. BACK TO TEXT