Rolon v. Philson Inc.

The claimant was represented by John Hanks, Esq., Law Offices of Angelo Cicchiello, 364 Franklin Ave., Hartford, CT 06114, who did not appear at oral argument.

The respondents were represented by Michael Brodinsky, Esq., Law Offices of Michael Brodinsky, 127 Washington Ave., North Haven, CT 06473.

This Petition for Review from the September 25, 1996 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 23, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the September 25, 1996 Finding and Dismissal 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 he sustained a compensable injury. Specifically, the trial commissioner found that the claimant failed to present credible testimony to support his contention that he sustained an injury to his left knee on either July 26, 1991 or August 6, 1993. In support of his appeal, the claimant contends that the weight of the evidence presented required the trial commissioner to find that the claimant sustained compensable injuries to his left knee on July 26, 1991 and August 6, 1993. We find no error on the part of the trial commissioner.

The claimant on appeal is essentially requesting that this board retry the evidence, which this board may not do. Rogers v. Laidlaw Transit, Inc., 45 Conn. App. 204, 206 (1997). 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 testimony was not credible regarding his allegation that he sustained injuries to his knee on either July 26, 1991 or August 6, 1993. The trial commissioner found that the claimant’s testimony regarding the alleged July 26, 1991 injury was not credible because he worked a full day, plus overtime on July 26, 1991, and because he failed to report a specific injury to his supervisor on that day. Moreover, the trial commissioner found that none of the contemporaneous medical reports in the record made any reference to a specific injury. It was within the discretion of the trial commissioner, as the trier of fact, to accord little or no weight to the claimant’s testimony that his left knee condition was caused by an incident at work on July 26, 1991. See Prescott v. Echlin, Inc., 15 Conn. Workers’ Comp. Rev. Op. 339, 2242 CRB-3-94-12 (June 25, 1996); Maglieri v. Incorporated Construction Ltd., 14 Conn. Workers’ Comp. Rev. Op. 149, 1947 CRB-1-94-1 (June 20, 1995).

Similarly, it was within the discretion of the trial commissioner to conclude that the claimant’s testimony regarding an alleged injury on August 6, 1993 was not credible. That conclusion is supported by the trial commissioner’s findings that the claimant did not perform any work on August 6, 1993; that the claimant failed to report an injury to his supervisor; and that there was an absence of any reference to a specific injury in the emergency room report contemporaneous to the alleged August 6, 1993 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). 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).