Fox-Gould v. Brooks Pharmacy

The claimant was represented by Joseph A. Moniz, Esq., Moniz, Cooper & McCann, 100 Allyn Street, Hartford, CT 06103.

The respondents were represented by Nancy E. Berdon, Esq., Sizemore Law Offices, Crossroads Corporate Park, 6 Devine Street, 1st Floor, North Haven, CT 06473.

This Petition for Review from the March 17, 2000 Finding of Dismissal of the Commissioner acting for the Third District was heard January 26, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the March 17, 2000 Finding of Dismissal of the Commissioner acting for the Second District. In that decision, the trial commissioner concluded that the claimant did not sustain her burden of proof regarding her claim that she suffered a fall-down incident at work which was precipitated by her picking up a “tote.” In support of her appeal, the claimant contends that she established by a preponderance of the evidence that she sustained a back injury either by falling backwards or by lifting a heavy tote.

Initially, we will address the respondents’ Motion to Dismiss based upon the claimant’s filing of a late brief. The claimant filed her brief on December 6, 2000, which allowed the respondents sufficient time to file a reply brief prior to the oral argument before this board on January 26, 2001. The respondents have not alleged any prejudice. We thus deny the respondents’ Motion to Dismiss.

The trial commissioner found the following relevant facts. The claimant was employed with the respondent employer as a selector at the employer’s warehouse commencing in November of 1998 through January 31, 1999 and then again on March 1, 1999. The claimant worked filling “totes” with up to 35 pounds of product inventory, which were then put onto a conveyor belt. The claimant was out of work for the month of February 1999, due to an asthma condition, and had dizzy spells and was blacking out in early January 1999 due to her lung disease. The claimant alleged that upon her return from her month off in February, on March 1, 1999 at approximately 8:00 P.M. she picked up a tote and felt low back pain, and fell backwards into shelving and then onto the floor. The trial commissioner did not find the claimant’s testimony to be credible, and concluded that the claimant did not sustain her burden of proof that she sustained injuries due to either lifting the tote or falling backwards to the floor.

In support of her appeal, the claimant argues that the preponderance of the evidence, including the medical reports, indicate that the claimant sustained injuries either by falling backwards or by lifting a heavy tote. 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 was not injured as she described on March 1, 1999 was based upon the trial commissioner’s assessment of the evidence, including the credibility of the claimant, and is fully supported by the record. Specifically, the trial commissioner found that none of the claimant’s co-workers observed her fall backwards as she alleged and that she was observed having breathing problems on March 1, 1999. Moreover, the trial commissioner made numerous findings regarding the claimant’s severe asthmatic condition, including the fact that the claimant’s primary complaint at the emergency room was a breathing problem caused by her asthma condition. Additionally, the trial commissioner found that the claimant denied being a smoker, and denied to emergency room personnel that she had smoked for at least the last eighteen months, even though she was observed smoking on breaks by other employees.

The trial commissioner’s findings of fact, including the above findings, support his conclusion that the claimant was not injured in the manner alleged by her. Accordingly, we must uphold the trial commissioner’s decision. Fair, supra. Moreover, as the claimant did not file a Motion to Correct pursuant to Admin. Reg. § 31-301-4, this board is limited to the trial commissioner’s factual findings on review. Seltenreich v. Stone & Webster 15 Conn. Workers’ Comp. Rev. Op 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996).

Finally, we will address the claimant’s Motion to Submit Additional Evidence, in which the claimant seeks to present various medical reports, some of which are dated prior to the close of the formal hearing and some of which are dated subsequent to the close of the formal hearing. 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. Bridgeport, 3199 CRB-4-95-10 (March 25, 1997), citing Holle v. The William Backus Hospital, 14 Conn. Workers’ Comp. Rev. Op. 166, 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).

In the instant case, the claimant has failed to offer any reason for presenting evidence after the formal hearing had been closed. See Lesczynski, supra. Moreover, the claimant offers no indication that the evidence which she seeks to present is really new or that it was undiscoverable with due diligence at the time of the original hearings. Id., see also Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 66, 550 CRD-7-87 (Dec. 1, 1988). Indeed, the claimant alleges that these reports “add additional credence to the Claimant’s complaint” and as such, appear to be merely cumulative, as the record already contains medical reports which support the claimant’s claim. See Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). We thus conclude that the claimant has failed to satisfy the requirements of Conn. Agencies Reg. § 31-301-9.