Ruiz-Dugue v. Greenwich Hospital

The claimant was represented by John T. Bochanis, Esq., Daly, Weihing & Bochanis, 1115 Main St., Suite 710, Bridgeport, CT 06604.

The respondents were represented by William Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the February 5, 1996 Finding and Award of the Commissioner acting for the Seventh District was heard November 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 petitioned for review from the February 5, 1996 Finding and Award of the Commissioner acting for the Seventh District. In that decision, the trial commissioner determined that the claimant sustained a compensable injury on March 8, 1990 and awarded temporary total disability benefits for the period from March 8, 1990 through July 2, 1990. In addition, the trial commissioner concluded that the claimant did not sustain her burden of proof as to a permanent partial disability. In support of her appeal, the claimant contends that the undisputed facts required the trial commissioner to find that the claimant was temporarily totally disabled from March 8, 1990 through April 10, 1995. In addition, the claimant contends that the trial commissioner’s denial of permanent partial disability is not supported by the record. We affirm the trial commissioner’s decision.

Section 31-307 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 had sustained a prior injury to her back due to an automobile accident on April 10, 1989, which she denied during examination by the respondents’ counsel.1 (Finding No. 25; 7/10/95 TR. at p. 95). The trial commissioner determined that the claimant’s testimony was not credible or reliable. (Finding No. 25-27). The trial commissioner concluded that the claimant failed to produce credible evidence of temporary total disability for the period from July 2, 1990 through April 10, 1995. We may not disturb the trial 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). It was within the discretion of the trial commissioner to determine that the claimant was totally disabled from March 8, 1990 through July 2, 1990 pursuant to § 31-307.

In further support of her appeal, the claimant contends that the uncontradicted evidence supports a finding of permanent partial disability. We disagree. It is the commissioner’s role to consider the evidence and determine the facts. Adzima v. UAC/Norden Division, 177 Conn. 107, 117 (1979); Tovish v. Gerber Electronics, 32 Conn. App. 595, 598 (1993), appeal dismissed, 229 Conn. 587 (1994). This board has repeatedly held that “the determination of the extent of an injured worker’s permanent disability (is) within the trial commissioner’s province as the trier of the facts.” Kerins v. Johnson Controls, 12 Conn. Workers’ Comp. Rev. Op. 72, 73, 1419 CRB-8-92-5 (Feb. 3, 1994) (citations omitted). 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).

In the instant case, the trial commissioner found that the claimant had sustained a prior injury caused by an automobile accident on April 10, 1989; that the claimant was treated by Dr. Micalizzi for said injury; that Dr. Micalizzi’s diagnosis for said injury included a traumatic sprain/strain syndrome involving the lower back; that prior to the March 8, 1990 injury, specifically on February 6, 1990, the claimant complained of low back pain during a visit to Dr. Micalizzi; and that as of February 6, 1990 Dr. Micalizzi’s diagnosis included a minimal bulging disc at L4-5. Moreover, the claimant relies upon the permanent partial disability rating of Dr. Hanson, who was not advised by the claimant of the prior automobile accident. (Finding No. 30).

The trial commissioner’s conclusion that the claimant did not sustain a permanent partial disability due to the March 8, 1990 work injury is based upon the weight and credibility which he accorded the evidence and is fully supported by the record. Similarly, the trial commissioner’s determination that the claimant’s psychiatric treatment was not caused by the compensable injury was based upon the weight and credibility which he accorded the evidence. (See 7/10/95 TR. at p. 83-86). We will not disturb such a determination. See Fair, supra.

Finally, we will address the claimant’s contention that the trial commissioner erred in failing to award attorney’s fees and interest based upon the respondents’ alleged undue delay and unreasonable contest pursuant to § 31-288(b) and § 31-300. As set forth above, we find that the trial commissioner’s decision is amply supported by the record. Whether to award attorney’s fees and interest pursuant to § 31-288(b) or § 31-300 is a discretionary decision to be made by the trial commissioner. See Byars v. Whyco Chromium, 14 Conn. Workers’ Comp. Rev. Op. 386, 2187 CRB-5-94-10 (Oct. 5, 1995), aff’d., 40 Conn. App. 938 (1996), (per curriam). We find no abuse of that discretion.

The trial commissioner’s decision is affirmed.

Commissioners George Waldron and Robin L. Wilson concur.

1 We note that the claimant’s denial of a prior injury occurred during cross-examination rather than direct examination. (7/10/95 TR. at p. 95). However, the claimant’s contention that the trial commissioner erred in denying her motion to correct on this point is not persuasive, as the trial commissioner was nevertheless in a position to judge the claimant’s credibility. See Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 1608 CRB-1-92-12 (Feb. 6, 1995) (a motion to correct may properly be denied where substituted facts would not alter the commissioner’s conclusion). BACK TO TEXT