Piko v. Jarvis Products Corp.

The claimant was represented by Timothy Welsh, Esq., Gozzi, Paladino & Welsh, 49 Sherwood Terrace, 929 Boston Post Road, Old Saybrook, CT 06475.

The respondents were represented by James D. Moran, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the January 20, 2000 Finding and Award of the Commissioner acting for the Eighth District was heard September 15, 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 respondents have petitioned for review from the January 20, 2000 Finding and Award of the Commissioner acting for the Eighth District. In that decision the trial commissioner found that the claimant sustained a compensable heart attack on March 18, 1998. Specifically, the trial commissioner found that on March 18, 1998, after broaching approximately 15 to 20 pieces of steel, which required considerable physical force, the claimant suddenly “could not feel his arms, felt extreme pain between his shoulder blades and experienced vertigo.” Finding ¶ 9. Ultimately, the claimant was taken to the hospital where he was diagnosed with a myocardial infarction. In support of their appeal, the respondents contend that the trial commissioner erred in finding that the claimant’s job duties included broaching on that day. We find no error.

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 their appeal, the respondents are essentially seeking to retry the facts of this case, which this board may not do. 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). “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it . . . .” Id. at 349 (citations omitted).

In the instant case, the evidence in the record amply supports the trial commissioner’s conclusion that the claimant was broaching steel on the day of the heart attack. It was within the discretion of the trial commissioner, as the trier of fact, to find the claimant’s testimony to be credible. Moreover, it was within the discretion of the trial commissioner to find that “there was clear evidence that the computerized production records, upon which [the respondents’ witnesses] relied, are not, in themselves, reliable.” Finding ¶ 21.

In support of their appeal, the respondents contend that the trial commissioner erred in denying their Motion to Correct. Specifically, the respondents requested that the findings be corrected to indicate that the claimant was not performing broaching (which requires physical exertion) on March 18, 1998, the day of the heart attack. The issue of whether the claimant was engaged in broaching on March 18, 1998 was clearly an issue of credibility. Specifically, the trial commissioner found the claimant’s testimony that he was broaching on March 18, 1998 to be credible, and the trial commissioner specifically accorded little or no weight to the testimony of the respondents’ witnesses who relied upon computerized records which indicated that no broaching occurred on that date. We find no error in the denial of the Motion to Correct, because where a party’s requested corrections pertain to the credibility of the witnesses, the trial commissioner is not required to grant those corrections. Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 627 (1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). Additionally, the respondents sought to add a finding that the claimant’s treating physician, Dr. Rogan, testified that if the claimant had not been broaching on that day, then he would not consider his work to have caused the heart attack. We find no error in the denial of this request, as it became immaterial when the trial commissioner determined that the claimant was broaching on the day of the heart attack.