Rivera v. Chesebrough Ponds

The claimant was represented by Thomas M. McNamara, Esq., McNamara & Goodman, 142 Temple St., New Haven, CT 06510.

The respondents were represented by Kevin B. Blake, Esq., Cotter, Cotter & Sohon, P.C., 500 Boston Post Road, Milford, CT 06460.

This Petition for Review from the April 4, 1997 Finding and Award of the Commissioner acting for the Third District was heard January 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the April 4, 1997 Finding and Award of the Commissioner acting for the Third District. They argue on appeal that the trier erred by finding the claimant’s injury compensable. We affirm the trial commissioner’s decision.

The trier found that the claimant was employed by the respondent Chesebrough Ponds as a material handler. His job required him to remove heavy boxes from a pallet. The claimant testified that he experienced pain in his shoulders and neck while lifting a box around midnight on Friday, November 11, 1994. He also testified that he completed the last hour of his work shift despite continuing pain, and briefly but unsuccessfully attempted to locate his supervisor when his shift concluded so that he could report the injury. He stated that he did not continue to look for his supervisor after his initial attempt to find him failed because he did not think the injury was anything more than a muscle strain. He first sought medical attention on November 14, 1994.

The claimant’s supervisor testified that no injury was reported to him even though he was on duty at that time, nor did he recall receiving a telephone call at home over the weekend. However, the November 11, 1994 log entry by the plant nurse indicated that the claimant’s supervisor had left her a voice mail message sometime over the weekend reporting that the claimant’s spouse had called and said that the claimant was suffering from neck pain that might be work-related. The claimant’s son also testified that he stopped by the plant on November 14, 1994 to drop off a note from Dr. Sacks regarding the claimant’s condition, but the plant nurse did not recall that note, nor was it mentioned in her log. Both Drs. Sabshin and Sella opined that the claimant’s injuries were consistent with the mechanism of a lifting injury.

The trial commissioner found that the claimant was injured at work while lifting and carrying a box, that the injury was reported to his supervisor over the following weekend, and that the plant nurse was provided with a disability slip from the treating physician on November 14, 1994. He noted that the “overwhelming majority of information concerning the lifting incident that was given to the doctors and plant personnel for the Respondent was consistent and is found to be totally credible.” Thus, he ordered the respondent to accept the injury, and to provide the claimant with all appropriate benefits. The respondents have appealed that decision.

The respondents’ argument on appeal is “that sufficient evidence was submitted and heard by the trial commissioner to infer that there arose a question of the credibility of the Appellee as to whether in fact an injury occurred on the night of November 11, 1994.” They point to contradictions between the various witnesses’ testimony, and medical evidence that the claimant had treated for problems with his cervical spine before November 11, 1994. This argument lacks legal merit. The evidence clearly supports the existence of a cervical problem; this case simply came down to whether the trier believed the claimant’s description of how the injury occurred. The findings specifically demonstrate that he did. It is a fundamental precept of workers’ compensation law that the trial commissioner determines the credibility of the witnesses. Kish v. Nursing and Home Care, Inc., 47 Conn. App. 620, 627 (1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). This board cannot and will not reassess the evidence on appeal.

The trial commissioner’s decision is hereby affirmed. If any amounts are due and owing the claimant pending appeal, interest is awarded pursuant to § 31-301c(b).