Carrozelli v. City of Bridgeport

The respondents were represented by Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the November 25, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District was 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 petitioned for review from the November 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 his hypertension and central retinal arterial occlusion of the right eye were caused by his employment. In support of his appeal, the claimant contends that the record supports a conclusion that his hypertension and resulting arterial occlusion were caused by stress at work, and that he sustained his burden of proof by presenting testimony from Dr. Wallace Lebowitz supporting causation. We find no error on the part of the trial commissioner.

The claimant’s argument on appeal is essentially that the commissioner’s conclusion is not supported by the evidence. In essence, the claimant is seeking to have this board retry his case, which we may not do. 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 employment did not cause either his hypertension or the arterial occlusion which occurred on January 23, 1993. The trial commissioner found that the claimant’s employment had ended on October 2, 1992, and the claimant collected unemployment benefits and did not perform any work activities from October 2, 1992 through January 23, 1993. Furthermore, the claimant’s hypertension preexisted his employment. (Finding No. 31- 32). The claimant, at the request of the respondents, was examined by Dr. Martin Krauthamer, who reviewed all of the medical records. Dr. Krauthamer opined that the claimant’s employment did not aggravate his hypertension and did not cause the occlusion of January 23, 1993.

The trial commissioner’s findings of fact and conclusion regarding causation are fully supported by the record. It was within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of Dr. Krauthamer, who conducted the independent medical examination, than to the opinions of the claimant’s treaters. Hawley v. Shell Oil Co., 13 Conn. Workers’ Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995); see also Fusco v. J.C. Penney, Case No. 1952 CRB-4-94-1 (March 20, 1997). 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).