Sherman v. Construction & General Laborers Union Local 390

The claimant was represented by Richard Gross, Esq., Cantor, Floman, Russell & Gross, P.C., 378 Boston Post Rd., P.O. Box 966, Orange, CT 06477.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the May 5, 1995 Finding and Award of the Commissioner acting for the Fifth District was heard May 10, 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 May 5, 1995 Finding and Award of the Commissioner acting for the Fifth District. In that decision, the trial commissioner concluded that the claimant failed to meet his burden of proof that his left shoulder injury was caused by a compensable automobile accident. In support of his appeal, the claimant contends that he sustained his burden of proof regarding the shoulder injury by presenting testimony from Dr. Beaumont and medical reports from Dr. Schiano and Dr. Vincitorio which indicate that the compensable automobile accident caused the claimant’s shoulder injury. In addition, the claimant contends that the trial commissioner improperly relied upon the medical opinion of Dr. Barnett, an independent medical examiner, because Dr. Barnett’s opinion was based upon inaccurate facts. 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 shoulder injury was not caused by a compensable automobile accident of July 28, 1989. Specifically, the trial commissioner concluded that the claimant “failed to sustain his burden of proof that he sustained a left shoulder injury on July 28, 1989, based upon the Claimant’s description of the mechanics of injury, the medical records and recitation of history, the delay in complaints of left shoulder symptoms and treatment, and the weight lifting incident.” (Finding No. 51(B)). The trial commissioner’s findings of fact and conclusion regarding causation are fully supported by the record. It was within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of the physician who conducted the independent medical examination than to the opinions 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).

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).