Francis v. White Oak Corp./Connecticut Sand and Stone

The claimant was represented by Gary J.C. Woodfield, Esq., 41 Lexington Street, New Britain, CT 06052.

The respondents were represented by David Schoolcraft, Esq., Duhamel & Schoolcraft, 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.

This Petition for Review from the April 1, 1999 Finding and Dismissal of the Commissioner acting for the Sixth District was heard January 21, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the April 1, 1999 Finding and Dismissal of the Commissioner acting for the Sixth District. In that decision the trial commissioner found that the claimant did not sustain his burden of proof regarding an alleged injury on February 2, 1998. In support of his appeal, the claimant contends that the medical evidence in the record indicates that the claimant did sustain an injury to his back on February 2, 1998. We find no error.

In the instant case, the trial commissioner found that the claimant injured his back while working for the respondent employer on July 1, 1997, while cleaning cement trucks. He lost only about two days of work from that injury. The claimant alleged that he subsequently sustained an injury to his back on February 2, 1998 when he allegedly struck his mid-back on a fin on the inside of the drum of a cement truck which he was cleaning. The claimant further alleged that he re-injured his mid-back on September 10, 1998 during his employment while shoveling debris. The trial commissioner concluded that the claimant’s testimony was not credible, after making numerous findings which set forth the claimant’s lack of credibility including the claimant’s failure to admit to having numerous prior injuries to his back.

When reviewing a trial commissioner’s decision, it is well established that this board “is obligated to hear the appeal on the record and not retry the facts….” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999) (quotations omitted). The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. O’Reilly, supra; McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted).

In his appeal, the claimant relies upon the opinion of Dr. Druckemiller, a treating physician, to support his claim that he was injured while at work on February 2, 1998. Contrary to the claimant’s contention on appeal, the trial commissioner was not required to accept Dr. Druckemiller’s medical opinion regarding causation, especially as that opinion was dependent in part upon the claimant’s description of his injury. See Palandro v. Bernie’s Audio-Video T.V. & App., 3876 CRB-3-98-8 (September 2, 1999) (the statements of the doctors regarding the cause of an injury are only as reliable as the history provided by the claimant); see also Moawad v. American Eagle, 3701 CRB-6-97-10 (August 25, 1999). It was within the discretion of the trial commissioner, as the trier of fact, to assess the credibility of all of the evidence, including the testimony of the claimant. In this appeal, the claimant is essentially seeking to retry the facts of this case, which this board may not do. Regarding the claimant’s contention on appeal that the trial commissioner failed to make a specific finding regarding the alleged re-injury of September 10, 1998, it is apparent from the decision that the trial commissioner did not accept the claimant’s testimony as credible, and thus did not find that a compensable injury occurred on that date.

In the instant case, the evidence in the record amply supports the trial commissioner’s conclusion that the claimant failed to meet his burden of proof regarding an alleged injury on February 2, 1998 or an alleged re-injury on September 10, 1998.