Celon v. Alternative Personnel Services, d/b/a Teammate

The claimant was represented by Paul Ganim, Esq., Ganim, Ganim, & Ganim, P.C., 4666 Main St., Bridgeport, CT 06606.

The respondents were represented by Robert S. Cullen, Esq., McGann, Bartlett & Brown, 281 Hartford Trnpk., Vernon, CT 06066.

This Petition for Review from the September 25, 1996 Finding and Dismissal of the Commissioner acting for the Fourth 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 Fourth District. In that decision, the trial commissioner concluded that the claimant failed to meet his burden of proof that he sustained a compensable injury on September 17, 1993. In support of his appeal, the claimant contends that the preponderance of the evidence required the trial commissioner to find that the claimant sustained a compensable injury on that date. We find no error on the part of the trial commissioner.

In his appeal, the claimant 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). 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). 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)).

In the instant case, the trial commissioner determined that the claimant’s testimony was not credible regarding his allegation that he slipped and fell on September 17, 1993. 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 medical condition was caused by an incident at work on September 17, 1993. 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). In the instant case, the trial commissioner’s findings of fact and his conclusion are amply supported by the record. Moreover, as the claimant has not filed a Motion to Correct, we are therefore limited to the findings of fact made by the trial commissioner. Bell v. U. S. Home Care Certified of Connecticut, 13 Conn. Workers’ Comp. Rev. Op. 294, 1792 CRB-1-93-8 (April 21, 1995), aff’d., 40 Conn. App. 934 (1996)(per curiam).