Fusco v. J.C. Penney Company

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

The respondents were represented by Kevin J. Maher, Esq., and James Moran, Esq., Maher & Williams, 1300 Post Rd., Fairfield, CT 06430-0550.

This Petition for Review from the June 13, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District was heard October 11, 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 filed a petition for review from the June 13, 1996 Finding and Dismissal of the trial commissioner acting for the Fourth District.1 In that decision, the trial commissioner found that the claimant failed to sustain her burden of proof that she suffered any injuries which were causally related to her employment. Specifically, the trial commissioner found that the claimant’s February 5, 1991 back surgery to remove a herniated disc was not causally related to an alleged lifting incident which occurred at work on January 14, 1991. In support of her appeal, the claimant contends that the conclusion of the trial commissioner is not consistent with the facts and the evidence in the record.

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 had suffered severe injuries to her back in an automobile accident on February 3, 1986. The claimant treated for her back condition with Dr. Austrian and Dr. Nijensohn. The claimant commenced working with the respondent employer in September 1988. The claimant often complained about chronic back pain while working for the respondent employer. On August 24, 1990 an MRI indicated that the claimant was suffering from a herniated disc at the L4-5 level, and Dr. Nijensohn recommended that the claimant undergo surgery. The claimant took steps to arrange for said surgery during the fall of 1990. (See Findings No. 7-10). On January 9, 1991 the claimant canceled the surgery which had been scheduled for January 22, 1991. On January 14, 1991, the claimant felt pain in her back while picking up a bag of jewelry, which caused her to reschedule the surgery. (Finding No. 12).

The trial commissioner’s conclusion that that the January 14, 1991 incident did not constitute a compensable injury is fully supported by the record, including the opinion of Dr. Mangieri, who conducted the independent medical examination of the claimant. Dr. Mangieri opined that it was not probable that the alleged incident of January 14, 1991 caused any increase in the claimant’s back injury or an increase in the need for surgery. It was within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of Dr. Mangieri than to the opinion of the claimant’s treaters. Hawley v. Shell Oil Co., 13 Conn. Workers’ Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995). Moreover, the trial commissioner found that there were no medical records contemporaneous with the alleged injury which cited a work-related injury or a causal connection. (Finding No. 15).

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). Furthermore, we find no error in the trial commissioner’s partial denial of the claimant’s Motion to Correct. On review of the denial of a Motion to Correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion to Correct also may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).

The trial commissioner’s decision is affirmed.

Commissioners George Waldron and Robin L. Wilson concur.

1 We note that the trial commissioner had originally issued a Finding and Dismissal on January 12, 1994, which the claimant appealed to this board. By a decision issued on November 1, 1995, this board granted the claimant’s Motion to Submit Additional Evidence, limited to testimony from Dr. Nijensohn. Subsequently, the trial commissioner issued the decision of June 13, 1996, which is the subject of the present appeal. BACK TO TEXT