Granata v. Waldbaum’s

The claimant was represented by Thomas Pursell, Esq., Law Office of Thomas B. Pursell, 12 Trumbull Street, P.O. Box 9721, New Haven, CT 06536.

The employer and Crawford & Company were represented by Timothy Welsh, Esq. and William Brown, Esq., McGann, Bartlett, & Brown, LLC, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The employer and Royal Insurance Co. were represented by Lawrence Pellett, Esq., Feeley, Nichols, Chase, McDermott & Pellett P.C., 37 Leavenworth Street, P.O. Box 2300, Waterbury, CT 06722-2300.

This Petition for Review from the December 3, 1997 Finding of Dismissal of the Commissioner acting for the Third District was heard August 21, 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 December 3, 1997 Finding of Dismissal of the Commissioner acting for the Third District. In that decision the trial commissioner concluded that the claimant’s left wrist condition and her bilateral thumb condition were not caused by her employment. In support of her appeal, the claimant contends that the trial commissioner erred in relying upon the opinion of Dr. Kerin, an independent medical examiner. The claimant has also submitted a Motion to Submit Additional Evidence.

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 trial 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’s conclusion that the claimant’s left wrist condition and her bilateral thumb condition were not caused by her part-time employment with the respondent employer was based upon the trial commissioner’s assessment of the evidence and is fully supported by the record. Specifically, the trial commissioner chose to rely upon the opinion of Dr. Kerin, who conducted an independent medical examination of the claimant at the request of the respondents. We have repeatedly held that it is within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of the physician who conducted an independent medical examination than to the opinion of the claimant’s treater. Sherman v. Construction & General Laborers Union Local 390, 3056 CRB-5-95-5 (Jan. 8, 1997), (citing Hawley v. Shell Oil Co., 13 Conn. Workers’ Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995)).

In support of her appeal, the claimant contends that it was error for the trial commissioner to rely upon the opinion of Dr. Kerin because the claimant alleges that Dr. Kerin based his opinion upon an erroneous fact. Specifically, the claimant contends that Dr. Kerin wrongly believed the claimant’s history to be that the pain in her thumbs did not occur until after her carpal tunnel surgeries. The claimant alleges that Dr. Kerin correctly understood from the claimant’s history that her thumb pain did not occur until 1987, but that Dr. Kerin wrongly understood that the carpal tunnel surgeries occurred prior to that time.

This issue was fully presented to the trial commissioner during the formal hearing, at which time both the claimant’s attorney and the respondents’ attorney questioned Dr. Kerin regarding this apparent discrepancy as to the date of the carpal tunnel surgery. (9/18/97 TR. at p. 31-65). It was within the discretion of the trial commissioner, as the trier of fact, to consider all of the testimony and to assess the credibility of the witnesses, including Dr. Kerin and the claimant. See Webb, supra. We conclude that the trial commissioner’s decision is fully supported by the evidence, including the testimony and medical reports of Dr. Kerin.

In support of her Motion to Submit Additional Evidence, the claimant seeks to present portions of the transcript of the deposition of the claimant which was conducted on February 4, 1997. The claimant contends that these portions of the transcript support her contention that the pain in her thumbs commenced prior to the 1988 surgeries. In opposition to the Motion to Submit Additional Evidence, the respondents have submitted portions of said February 4, 1997 transcript in which the claimant testified that the pain in her thumbs did not occur until after the 1988 surgeries. The claimant does not dispute that the transcript which she now seeks to submit was in existence at the time of the formal hearing and was not offered into evidence at that time.

This Board has “repeatedly held that it is the claimant’s burden to recognize and resolve any inconsistencies in the evidence at the formal hearing, whether or not those discrepancies seemed significant to the claimant at the time of the hearing.” Liano v. City of Bridgeport, 3199 CRB-4-95-10 (March 25, 1997), citing Holle v. The William Backus Hospital, 14 Conn. Workers’ Comp. Rev. Op. 169, 2039 CRB-2-94-4 (May 10, 1995); Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-9, 1289 CRD-6-91-9 (Dec. 2, 1992). The claimant has shown no good reason for presenting this evidence after the close of the formal hearing. The evidence which the claimant seeks to submit was clearly available to the claimant at the time of the formal hearing, and could have been submitted at that point. See Carr v. Southern New England Telephone Co., 13 Conn. Workers’ Comp. Rev. Op. 21, 22, 1846 CRB-3-93-9 (Nov. 4, 1994). We therefore deny the claimant’s Motion to Submit Additional Evidence.