Ramadhar v. Bourdon Forge Company

The employer and ITT Hartford were represented by Joseph Skelly, Jr., Esq., Edward M. Henfey & Associates, 55 Farmington, Hartford, CT 06105.

The employer and EBI were represented by Brian Prindle, Esq., 72 Bissell Street, Manchester, CT 06040.

The employer and Chubb were represented by Robert Pinciaro, Esq., Mihaly & Kascak, 925 White Plains Rd., Trumbull, CT 06611.

The employer and CIGNA were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

The employer and Kemper were represented by Tracey Green Cleary, Law Offices of Michael Brodinsky, 127 Washington Ave., P.O. Box 35, North Haven, CT 06473.

This Motion to Submit Additional Evidence and Petition for Review from the November 12, 1996 Finding and Dismissal of the Commissioner acting for the Eighth District, were heard June 27, 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 filed an appeal from the November 12, 1996 Finding and Dismissal of the trial commissioner acting for the Eighth District. In that decision the trial commissioner found that the claimant failed to sustain his burden of proof that he suffered from silicosis which was causally related to his employment. In support of his appeal, the claimant contends that medical causation was supported by the evidence in the record, including the opinion of Dr. DeGraff. In addition, the claimant during oral argument before this board requested a motion to submit additional evidence, specifically a radiological consultation report dated September 29, 1995 from Dr. Aucreman.

We will first address the claimant’s contention that his testimony was interrupted and that he was not given an opportunity to present his full testimony. We have carefully reviewed the transcripts of the formal hearings. The claimant was represented by an attorney during these hearings. Initially, during the April 17, 1995 hearing the claimant’s testimony consisted of lengthy narrative answers. The respondents’ attorney objected, and the trial commissioner agreed that the claimant’s attorney should change his style of direct examination. (4/17/95 TR. at p. 10). The use of more focused questioning is consistent with normal practice, and did not deny the claimant a full and fair opportunity to present his testimony.

We next turn to the merits of the claimant’s appeal. It has repeatedly been held that 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, Dr. Godar examined the claimant and opined that the claimant did not have any lung disease or condition which arose out of his employment. Dr. DeGraff issued a report on January 13, 1994 in which he stated that a high resolution CAT scan showed no evidence of silicosis. Dr. DeGraff later testified that despite said CAT scan, he was of the opinion that the claimant did have silicosis. He based his testimony on the fact that several other of his patients had negative CAT scans but also had evidence of fibrosis in biopsies or autopsies, even though the claimant had never had a biopsy or autopsy. (Findings 11 and 12). It was the trial commissioner’s duty to evaluate this claim based on the medical evidence currently before him, and to determine the credibility of the expert testimony. Webb, supra. The trial commissioner’s conclusion is fully supported by the record and may not be disturbed. Fair, supra.

Next, we note that the claimant now contends for the first time that the issue of causation should have been decided by a medical panel pursuant to § 31-298a C.G.S. We find no merit to this argument, as the medical panel under § 31-298a C.G.S. is not mandatory, and the claimant’s request was not raised before the trial commissioner.

Finally, we will address the claimant’s request that this board review a radiological consultation report dated September 29, 1995 from Dr. Aucreman. By agreement of the parties, the board accepted the claimant’s request to review the medical report. See § 31-301(b). Because the trial commissioner’s decision is based on the credibility which he accorded the evidence, and the decision is fully supported by the record, we conclude that the September 29, 1995 medical report is not determinative.