Simeone v. Tilcon Tomasso

The claimant was represented by Alan Silver, Esq., 275 Orange Street, New Haven, CT 06510.

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

The Second Injury Fund was represented by Richard Hine, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the April 22, 1997 Finding of the Commissioner acting for the Third District was heard January 23, 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 claimant has petitioned for review from the April 22, 1997 Finding of the Commissioner acting for the Third District. She argues on appeal that the trial commissioner erred by finding that her late husband’s fatal heart attack was not a compensable injury. We affirm the trial commissioner’s decision.

The trial commissioner found that the decedent was employed as a truck driver by the respondent Tilcon Tomasso on August 10, 1992. His job that day was to deliver materials to the upper level of a quarry, and to haul away dirt and brush once the materials were delivered. While sitting in the cab of his vehicle waiting to discharge his load of materials, the decedent passed away. The cause of his death was determined to be atherosclerotic cardiovascular disease. The claimant filed a claim for dependent death benefits under § 31-306, claiming that the decedent’s heart attack arose out of and in the course of his employment in that his fear of heights accelerated his pre-existing heart disease. She testified, however, that the decedent never sought professional help for his fear of heights, and never mentioned it to anyone but her.

The trial commissioner found that the claimant’s pre-employment physical, which he passed, was not designed to identify the extent of the heart problems he already had. He found credible the testimony of Dr. Dougherty, who opined that the cause of the decedent’s death was multi-vessel coronary atherosclerotic disease that evolved between six hours and two days prior to the morning of August 10, 1992. He believed that the dominant risk factors that were most dangerous to superimpose on atherosclerotic heart disease were high cholesterol levels, high blood pressure, and smoking. According to the decedent’s family physician, the claimant had a cholesterol level of 313 and smoked 1½ packs of cigarettes daily. Dr. Dougherty thought that pre-employment stress could be a minor risk factor, but did not believe that the claimant’s death was caused by his very short time on the job site. In accordance with this medical opinion, the trial commissioner dismissed the instant claim. The commissioner specifically found the testimony of Dr. Fazzone, who testified that the decedent’s heart attack was work-related, not to be credible, and ruled that the claimant had not proven that the decedent’s alleged fear of heights in any way caused his death. The claimant has appealed that decision.

First, we note that the claimant did not file a Motion to Correct the trial commissioner’s findings. Without such a motion, this board may not disturb any of the factual findings that were made by the trial commissioner. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996); Admin. Reg. § 31-301-4. We are limited to a review of the trier’s legal conclusions to determine if they are supported by the enumerated findings. Pesce v. Mitchell Bate Company, 16 Conn. Workers’ Comp. Rev. Op. 231, 232, 3236 CRB-5-95-12 (June 23, 1997). Clearly, the findings listed above, which we must presume accurate absent a Motion to Correct, directly support the dismissal of the appellant’s claim.

Second, even if the claimant had filed a Motion to Correct, the trial commissioner would still have been entitled to rely on the medical opinion of Dr. Dougherty over that of Dr. Fazzone, and would not have been required to accept any of the claimant’s testimony as true. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The credibility of the witnesses is an issue to be determined solely by the trier of fact. Id.; Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998). Legally, the burden is upon the claimant to prove that a compensable injury has occurred. If the trial commissioner is not persuaded by the evidence that the claimant offers, there is little this board can do to change that fact on appeal. Minneman v. Norwich Board of Education/Norwich Public Schools, 2294 CRB-2-95-2 (Dec. 13, 1996), affirmed, 47 Conn. App. 913 (1997) (per curiam). Here, the trial commissioner was not convinced that the claimant had proven a causal connection between the decedent’s employment and his fatal heart attack. This board must affirm that decision on review. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).