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CASE NO. 3802 CRB-07-98-04
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 3, 1999
UTICA MUTUAL INSURANCE CO.
SECOND INJURY FUND
The claimant was represented by Joseph Tauber, Esq., Law Offices of Joseph Tauber, 99 Prospect Street, Stamford, CT 06901.
The respondents were represented by Robert Pinciaro, Esq., Mihaly & Kascak, 925 White Plains Road, Trumbull, CT 06611.
The Second Injury Fund was represented at the trial level by Michelle Truglia, Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120, who did not appear at oral argument.
This Petition for Review from the March 27, 1998 Supplemental Finding and Award of the Commissioner acting for the Seventh District was heard August 21, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the March 27, 1998 Supplemental Finding and Award of the Commissioner acting for the Seventh District. In that decision the trial commissioner found that the claimant sustained a compensable injury on February 25, 1985 which caused her to be temporarily totally disabled. In support of their appeal, the respondents contend that the trial commissioner erred in finding that the claimant’s temporary total disability was caused by her compensable injury rather than by her pre-existing hip and leg condition.
A brief procedural history is in order. The trial commissioner originally issued a Finding and Award on January 23, 1997 in which he found that the claimant was temporarily totally disabled due to a compensable injury of February 25, 1985. The respondents appealed that decision, and the Compensation Review Board issued a decision remanding the matter to the trial commissioner on the basis that both the claimant and the respondents had requested a clarification of the January 23, 1997 Finding and Award. Aquino v. Clairol, Inc., 3802 CRB-7-98-4 (Sept. 17, 1997). Upon remand, the trial commissioner held an additional formal hearing and issued a Supplemental Finding and Award on March 27, 1998.
In the Supplemental Finding and Award, the trial commissioner took judicial notice of the original January 23, 1997 Finding and Award. The trial commissioner found that on February 25, 1985, the claimant fell from a platform while at work and landed on a hard surface. Due to the fall, the claimant injured her head, face, upper body parts, and fractured a bone in her right foot. Based upon the medical reports of Dr. D’Onofrio and Dr. Small, an orthopedic surgeon, the trial commissioner concluded that from the date of the injury, the claimant had remained temporarily totally disabled. The trial commissioner added the following in paragraph C(1) of his supplemental decision:
.... the rationale or reasoning that the Claimant was found to be temporarily totally disabled to the date of the last Finding and Award, was based on the fractured bone to her right foot, together with injuries to her head, face, upper body parts, and her legs.
While it is noted that Dr. Small in numerous reports refers to pre-existing conditions in the Claimant’s lower extremity to include her knees and hips, the undersigned commissioner in making his Finding and Award on January 23, 1997, did not consider the possible injuries to her hips in making a determination that the Claimant was, in fact, temporarily totally disabled.
In support of their appeal, the respondents contend that the record indicates that the claimant’s total disability was caused by her pre-existing hip and left leg condition rather than by the injuries caused by the fall. Whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). Similarly, the causation of the claimant’s total disability normally presents a question of fact for the trial commissioner. Ciarleglio v. D.I. Chapman Company, 15 Conn. Workers’ Comp. Rev. Op. 380, 2076 CRB-3-94-6 (Aug. 6, 1996).
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 record fully supports the trial commissioner’s conclusion that the claimant’s temporary total disability was caused by the 1985 accidental injury. Specifically, in numerous reports beginning in 1985 and continuing through 1994, Dr. Small opined that the claimant was totally disabled from any type of work. (1/23/97 Finding and Award, Finding No. 11). The claimant suffered from some deformities of the lower extremities prior to 1985. However, the medical records indicate that any surgery relating thereto was to correct the claimant’s bowlegged condition and was cosmetic in nature. (1/23/97 Finding and Award, Finding No. 6). The trial commissioner concluded that “the medical reports reveal that the problems with the Claimant’s lower extremities prior to February 25, 1985 did not directly result in her condition subsequent to February 25, 1985.” (1/23/97 Finding and Award, Finding No. 7). We find no error, as it was within the discretion of the trial commissioner as the finder of fact to determine the weight and credibility of the testimony of witnesses, including that of Dr. Small. Webb, supra. Accordingly, we may not disturb the trial commissioner’s decision. See Fair, supra.
The trial commissioner’s decision is affirmed.
Commissioners Michael S. Miles and Stephen B. Delaney concur.
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