Matejek v. Tilcon Tomasso Inc.

The claimant was represented by Daniel B. Scott, Esq., Watstein & Watstein, 685 Middle St., P.O. Box 1360, Bristol, CT 06011-1360.

The respondents were represented by Diane Duhamel, Esq., Duhamel & Schoolcraft, L.L.C., 131 New London Turnpike, Glastonbury, CT 06033.

This Petition for Review from the April 9, 1997 Finding and Award of the Commissioner acting for the Sixth District was heard December 19, 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 April 9, 1997 Finding and Award of the Commissioner acting for the Sixth District. In that decision the trial commissioner concluded that the claimant’s disability and medical treatment subsequent to November 18, 1992, the date of a non-work related accident, was not caused by a prior compensable injury. In support of his appeal, the claimant contends that the evidence supports a determination that his disability and medical treatment were caused by the compensable injury rather than by the intervening noncompensable injury. We find no error on the part of the trial commissioner.

The trial commissioner found the following facts. The claimant sustained a compensable injury to his low back while doing some heavy lifting on September 14, 1990. The claimant was transported to a walk-in clinic where he was diagnosed with lumbar sprain and given a muscle relaxant. The claimant had planned a two-week vacation to commence on the day following the injury, and testified that he cut his vacation trip short due to back pain. The claimant returned to full-time work upon returning from the two-week vacation period. On November 18, 1992, the claimant’s wife, while driving a pick-up truck, struck the claimant while he was on the street. The claimant alleged in a personal injury lawsuit against his wife that the wife forcibly struck him, hurling him six feet in the air, and that he violently landed on his back and buttocks sustaining severe injuries to his back, legs, and right knee. (Finding No. 7). Subsequently, the claimant was diagnosed with a low back disc herniation and surgery was performed by Dr. Collias.

On December 13, 1993, an independent medical examination was performed by Dr. Yannopoulos, who opined that the claimant had spondylolysis of the lumbar spine which was caused by the November 18, 1992 motor vehicle accident. Dr. Yannopoulos found that the claimant had sustained a ten percent permanent partial disability of the low back. He attributed nine percent to the November 18, 1992 accident and one percent to the September 14, 1990 injury.

In support of his appeal, the claimant contends that it was error for the trial commissioner to rely on the opinion of Dr. Yannopoulos because after being shown an X-ray report Dr. Yannopoulos admitted that “his opinion was incorrect.” (Claimant’s Brief at p. 15). To the contrary, Dr. Yannopoulos during his deposition repeatedly affirmed his medical opinion that the November 18, 1992 injury was the cause of the claimant’s need for surgery, and explained that the new information provided to him did not alter his prior medical opinion. (9/16/96 Depo. at p. 15-16, 19-20 and 25-28).

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 further support of his appeal, the claimant contends that the trial commissioner erred by denying his Motion to Correct. On review of the denial of a Motion to Correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion to Correct also may be denied properly where the legal conclusion of the commissioner would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). In the instant case, the trial commissioner chose to accord greater weight to the opinion of Dr. Yannopoulos rather than to the opinion of Dr. Needham. It was within the discretion of the trial commissioner, as the trier of fact, to make this determination. We find no error in the commissioner’s denial of the claimant’s Motion to Correct.

The trial commissioner’s findings of fact are fully supported by the record. 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).