Ohlmann v. Canterbury Trails Farm

CASE NO. 3075 CRB-7-95-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 13, 1996

SANDRA OHLMANN

CLAIMANT-APPELLANT

v.

CANTERBURY TRAILS FARM

EMPLOYER

and

COMMERCIAL UNION INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Guy L. DePaul, Esq., Jones, Damia, Kaufman, Wellman, Borofsky & Stelljes, 29 Sugar Hollow Rd., P.O. Box 2929, Danbury, CT 06813-2929.

The respondents were represented by Steven Levy, Esq., Friedman, Mellitz & Newman, P.C., One Eliot Place, Fairfield, CT 06430.

This Petition for Review from the May 30, 1995 Finding and Award of the Commissioner acting for the Seventh District was heard May 10, 1996 before a Compensation Review Board panel consisting of Commissioners George Waldron, Robin L. Wilson and Michael S. Miles.

OPINION

GEORGE WALDRON, COMMISSIONER. The claimant has petitioned for review from the May 30, 1995 Finding and Award of the Commissioner acting for the Seventh District. In that decision, the trial commissioner concluded that the claimant failed to meet her burden of proof that her cervical condition was causally related to a prior compensable accident. In support of her appeal, the claimant contends that the uncontradicted evidence required the trial commissioner to find that the claimant’s cervical injury was caused by the compensable horse riding accident. We find no error on the part of the trial commissioner.

The claimant’s argument on appeal is essentially that the commissioner’s conclusion is not supported by the evidence. Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the trial commissioner determined that the claimant’s cervical condition was not caused by a compensable horseback riding accident of July 10, 1990. The trial commissioner found that the independent examiner, an orthopedic surgeon, issued a report that an MRI of the claimant’s spine did not indicate any abnormalities, and he found no ratable impairment of the spine. Moreover, the trial commissioner found that none of the medical reports in the record, with the exception of a report by a physical therapist, made any reference to a neck injury until 1993. It was within the discretion of the trial commissioner, as the trier of fact, to accord little or no weight to the claimant’s testimony that her neck condition was caused by the July 10, 1990 accident.

Where, as here, the commissioner’s determination is based upon the weight and credibility that he has accorded the evidence, we will not disturb such a determination. Dickey v. Harris Graphics, 12 Conn. Workers’ Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994). Moreover, a trial commissioner has the “right to reject testimony even if seemingly uncontradicted.” Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 235, 1000 CRD-5-90-4 (Oct. 30, 1991); see also Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996).

The trial commissioner’s decision is affirmed.

Commissioners Robin L. Wilson and Michael S. Miles concur.