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CASE NO. 4304 CRB-7-00-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 19, 2001
KEMPER INSURANCE GROUP
The claimant was represented by B.T. Canty, Esq., Kerin & Canty, P.C., 193 East Avenue, Norwalk, CT 06855.
The respondents were represented by John Majewski, Esq., Law Office of Tracey Green Cleary, 2750 Dixwell Avenue, P.O. Box 187289, Hamden, CT 06518.
This Petition for Review from the October 10, 2000 Finding and Dismissal of the Commissioner acting for the Seventh District was heard May 18, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the October 10, 2000 Finding and Dismissal of the Commissioner acting for the Seventh District. He asserts on appeal that the trier erred by refusing to acknowledge certain allegedly undisputed facts in his findings that would have required a conclusion of compensability. We disagree, and affirm the trial commissioner’s decision.
In this matter, the claimant alleges that he suffered a stomach injury on August 11, 1998 while working for the respondent Uniroyal Technology. He filed two notices of claim: one indicating a July 20, 1997 injury date, and the other an August 11, 1998 injury date. Both notices indicate that the injury was caused by lifting heavy objects. The commissioner found that the claimant’s testimony indicated that he was suffering stomach pain perhaps three or four months prior to the claimed August 1998 injury date, and that he began to complain of stomach pain about a week before said injury date. Though the claimant testified that his job as an “inspector” required heavy lifting; January 24, 2000 Transcript, p. 8; the trier noted that further testimony by the claimant and by his personnel representative, Ramone Colon, indicated that the jobs of “inspector” and of “mixer” did not involve lifting. See, e.g., Transcript, p. 69. This testimony was corroborated by the third-shift coordinator, Beraki Ghebrehiwet. Id., p. 94. The trier then noted that the claimant admitted that he did not actually work on August 11, 1998, the alleged date of injury; Transcript, p. 7; and that he produced no witnesses who had ever seen him doing heavy lifting at work. The trier accordingly ruled that the claimant had failed to meet his burden of proof with credible and convincing evidence, and dismissed his claim for benefits. The claimant has appealed that ruling, along with the trier’s denial of his Motion to Correct.
The claimant takes the position on appeal that there is “simply no dispute” that the claimant was required to lift heavy weights as part of his job, contrary to the findings of the trial commissioner. Brief, p. 4. Because his treating physician stated that heavy lifting caused his abdominal hernia (in conjunction with his already-weak stomach musculature), the claimant contends that his injury should have been deemed compensable. See Claimant’s Exhibit A. We remind the claimant that, when a workers’ compensation claim is made, and the parties are unable to resolve it by mutual agreement, a commissioner may hold formal hearings to determine the facts of that claim. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). It is the role of that trial commissioner to evaluate all of the evidence presented by the parties—the testimony of the claimant, witnesses, co-workers, medical professionals, and any exhibits, documents or reports that might be entered into the record—and to decide which, if any, evidence he finds believable. Id.; Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). However, the parties do not start from the same precise position, as the claimant has the burden of proving that he has sustained a compensable injury in the first instance. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000), aff’d, 63 Conn. App. 482 (2001). As an illustration of this burden’s effect, if a trial commissioner found none of the evidence in the record to be persuasive, the respondents would essentially prevail by default. Warren, supra.
The trial commissioner here cited testimony from two of the claimant’s co-workers that largely contradicted the claimant’s often unclear testimony regarding his job duties and any lifting that said duties might have involved. It was the trier’s prerogative to find those remarks believable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999). He was also within his rights in crediting Mr. Colon’s recollection that the claimant had told him he was planning to have surgery for his continuing stomach problems a week and a half to two weeks before August 11, 1998, but that he had not mentioned that these problems were attributable to his work duties. Transcript, p. 71-74. Further, the claimant filled out a form for group accident and health benefits on September 23, 1998, stating that his disability was not the result of a work-related illness or injury. Respondents’ Exhibit 1. On the strength of such details, the trier permissibly concluded that the claimant’s evidence was insufficient to establish his claim that his hernia surgery was caused by lifting heavy objects at the workplace. This board does not have the power to reverse such a determination of credibility on review. Fair, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Therefore, the trier’s dismissal of the instant claim for benefits must stand.
Accordingly, the trial commissioner’s decision is affirmed.
Commissioners George A. Waldron and Ernie R. Walker concur.