Steigerwald v. U.S. Surgical

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

The respondents were represented by David Chapman, Esq., Law Offices of Larry Lewis, 639 Research Parkway, Meriden, CT 06450.

This Petition for Review from the September 6, 1996 Finding and Dismissal of the Commissioner acting for the Seventh District was heard May 9, 1997 before a Compensation Review Board Panel consisting of the Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has filed a petition for review from the September 6, 1996 Finding and Dismissal of the trial commissioner acting for the Seventh District. In that decision the trial commissioner found that the claimant failed to sustain her burden of proof that she suffered an injury to her back which was causally related to her employment. In support of her appeal, the claimant contends that the trial commissioner’s decision is not consistent with the facts and the evidence in the record. We find no error.

In the instant case, the claimant alleges that she sustained a compensable injury to her back on March 6, 1992 while walking on an asphalt sidewalk while returning from the employer’s parking lot after a lunch break. The claimant filed a notice of claim on September 1, 1992 in which she stated that she “hurt my back & neck when I tripped and fell in the parking lot at work.” (Respondent’s Exh. 2). The trial commissioner found that there were conflicting histories provided by the claimant regarding the cause of her condition. The trial commissioner found that the claimant had initially filed an insurance form with her group health insurance seeking reimbursement for medical costs, and that the claimant resubmitted said form with a statement from her treating chiropractor, Dr. Barnett, indicating that her condition did not arise from her employment. (Finding No. 6-8). The trial commissioner further found that the claimant was seen by a neurologist, Dr. Levine, who issued a report which indicated that the claimant was walking down a hill and suddenly felt excruciating pain, but does not mention any history of tripping or falling. (Finding No. 10-11).

Furthermore, Dr. Ripps, an orthopedist who performed an independent medical examination, stated that the claimant advised him that she was walking fast down hill when she “stubbed her left foot and flexed forward to catch herself.” (Finding No. 14). However, the three co-workers who were with claimant at the time of the alleged accident on March 6, 1992 provided written statements which indicated that neither a stubbing nor a tripping occurred. (Finding No. 15). We note that these statements were offered into evidence by the claimant (4/11/95 Depo. of Dr. Ripps at p. 44) and were entered as a full exhibit. (8/7/95 TR. at p. 12-13).

The claimant’s argument on appeal is essentially that the commissioner’s conclusion is not supported by the evidence. Specifically, the claimant contends that the trial commissioner based his decision upon the deposition testimony of Dr. Ripps, which the claimant contends should not have been admitted into evidence. We disagree. Workers’ compensation commissioners are not bound by common law or statutory rules of evidence, “but shall make inquiry, through oral testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” § 31-298 C.G.S.

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’s conclusion that the claimant did not sustain her burden of proof that she had suffered a compensable injury on March 6, 1992 was based upon the credibility of the claimant regarding the history of the alleged incident. 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). The trial commissioner’s findings and conclusion in this case are fully supported by the record.