Bennings v. State of Connecticut/Dept. of Corrections

CASE NO. 3213 CRB-4-95-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 18, 1996

ANTONIO BENNINGS

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPT. OF CORRECTIONS

EMPLOYER

and

ALEXSIS, INC.

SELF INSURED ADMINISTRATOR

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared on his own behalf.

The respondents were represented by Michael Giammatteo, Esq., Assistant Attorney General, 55 Elm St., Hartford, CT 06141-0120.

This Petition for Review from the October 31, 1995 Finding and Award of Dismissal of the Commissioner acting for the Fourth District was heard April 19, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 31, 1995 Finding and Award of Dismissal of the Commissioner acting for the Fourth District. In that decision, the trial commissioner decided the sole issue of the claimant’s request for temporary total disability benefits for the period from March 14, 1995 through March 27, 1995. The trial commissioner concluded that the claimant did not sustain his burden of proof regarding temporary total disability for said period, and thus denied the claimant benefits pursuant to § 31-307 C.G.S. In support of his appeal, the claimant contends that the trial commissioner’s denial of temporary total benefits was improper. Specifically, the claimant contends that it was unfair for the trial commissioner to deny benefits based upon the refusal of the claimant’s treating physician to treat him and the claimant’s resulting decision to go to a walk-in medical clinic. We affirm the trial commissioner’s decision.

We will first address the claimant’s failure to file a legal brief. The claimant, acting pro se, has filed reasons of appeal, and has filed a letter explaining his reasons of appeal. In addition, the claimant appeared at oral argument before this board. Accordingly, we will not dismiss the claimant’s appeal for failure to prosecute. See Molbury v. Midwest Drivers Corporation, 10 Conn. Workers’ Comp. Rev. Op. 202, 1278 CRD-7-91-8 (Nov. 12, 1992). We note that the respondent employer has not filed a legal brief or any motions or documents on appeal.

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 a trial commissioner’s factual determination unless the 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 considered the claimant’s testimony and documents submitted by the claimant. The trial commissioner found that the claimant’s testimony regarding the referral made by his authorized treating physician, Dr. Bellows, was not credible as it contradicted Dr. Bellow’s medical notes. (Finding C). The trial commissioner concluded that the claimant failed to produce credible evidence of temporary total disability for the period from March 14, 1995 through March 27, 1995. (Findings A, B, C, D, and E). We may not disturb the commissioner’s conclusions which are dependent on the weight and credibility accorded the evidence. Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994). We conclude that it was within the discretion of the commissioner to determine that the claimant was not eligible to receive benefits pursuant to § 31-307 C.G.S.

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

Commissioners George Waldron and Robin L. Wilson concur.