Dubay v. D.R. Templeman Company

The claimant was represented by Allen J. Segal, Esq., Segal & Laska, 100 East Main Street, P.O. Drawer A, Plainville, CT 06062.

The respondents were represented by James J. Moynihan, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the August 25, 1998 Finding and Dismissal of the Commissioner acting for the Sixth District was heard March 26, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 25, 1998 Finding and Dismissal of the Commissioner acting for the Sixth District. In that decision the trial commissioner concluded that the claimant did not sustain her burden of proof regarding her claim that her right shoulder condition was caused by an alleged work related incident. In support of her appeal, the claimant contends that the trial commissioner erred by relying upon the opinion of the physician who conducted an independent medical examination of the claimant. We find no error.

The trial commissioner found the following relevant facts. The claimant alleged that on April 10, 1997 she sustained a right shoulder injury when her machine jammed, forcefully pulling her towards it. The respondent concedes that the claimant is suffering from an injury to the long thoracic nerve which has caused a winging of the right shoulder, but deny that said injury was caused by her employment. The trial commissioner found that the claimant has been under the care of Dr. Parisi for a long-standing history of orthopedic problems which include several surgical procedures performed on both shoulders. Dr. Parisi testified that the claimant did not indicate that her injury occurred when a machine jammed which caused her to be pulled toward it. The claimant recited the history of how her injury occurred to various physicians, but it was not until the independent medical examination by Dr. Barnett that she related a forceful pulling on her arm due to a machine jam. Dr. Barnett testified that the type of injury sustained by the claimant could be caused by either a traumatic event or by a spontaneous development. Dr. Barnett noted the inconsistencies regarding the claimant’s histories given to other physicians, and opined that the claimant’s injury was not causally related to her employment.

In support of her appeal, the claimant contends that a “long thoracic nerve palsy with a winging of the right scapula is traumatic in nature and can not be spontaneous.” (Claimant’s Brief at 6). In support of this contention, the claimant has attached excerpts from a medical treatise. We may not consider such new evidence, however, as the claimant has shown no good reason for presenting this evidence after the closing of the formal hearing, and it 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).

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 shoulder condition was not caused by the alleged incident of April 10, 1997 was based upon the trial commissioner’s assessment of the evidence and is fully supported by the record. Specifically, the trial commissioner found that the claimant did not give a history of a machine jamming and pulling of her arm to any of her physicians prior to her examination by Dr. Barnett. The trial commissioner chose to rely upon the medical opinion of Dr. Barnett, who opined that the claimant’s injury was not caused by her employment. We have repeatedly held that it is within the discretion of the trial commissioner 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 (decided Jan. 8, 1997), (citing Hawley v. Shell Oil Co., 13 Conn. Workers’ Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995)). We conclude that the record in the instant case, including the deposition testimony of Dr. Barnett, amply supports the trial commissioner’s decision.