Bellman v. Christy’s Market

The respondents were represented by Lawrence Pellett, Esq., Feeley, Nichols, Chase, McDermott & Pellett P.C., 37 Leavenworth Street, P.O. Box 2300, Waterbury, CT 06722-2300.

This Petition for Review from the May 7, 2001 Finding and Dismissal of the Commissioner acting for the Sixth District was heard November 16, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

DISMISSAL

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has filed a timely petition for review from the May 7, 2001 Finding and Dismissal of the Commissioner acting for the Sixth District. The claimant has failed to file a motion to correct, reasons of appeal, or a brief.

Accordingly, we dismiss the claimant’s appeal for failure to prosecute with proper diligence pursuant to Practice Book § 85-1. Taylor v. Ron Fournier Builders, 4257 CRB-5-00-6 (July 30, 2001) (pro se claimant’s appeal was dismissed for failure to prosecute under Practice Book § 85-1 where nothing was filed beyond petition for review); see also Thomas v. Cash Oil, 15 Conn. Workers’ Comp. Rev. Op. 410, 2272 CRB-3-95-1 (Aug. 28, 1996). We note that although the claimant was represented by counsel at the trial level, correspondence in the record indicates that her attorney advised her that he would not represent her in her appeal and advised her to obtain counsel.1

Even if we were to consider the merits of the claimant’s appeal, we would necessarily affirm the trial commissioner’s decision. This is because the trial commissioner’s decision is fully supported by the record and was based upon his assessment of the credibility of the evidence, which this board may not disturb. Specifically, the trial commissioner found that the claimant sustained a compensable fall-down injury on December 19, 1995, which caused the claimant to sustain cervical, thoracic, and lumbar strains. However, the trial commissioner concluded that the claimant did not meet her burden of proof that she sustained a brain injury or a spinal cord injury as a result of the December 19, 1995 injury.

At oral argument before this board, the claimant contended that the trial commissioner disregarded her testimony and disregarded the medical testimony of Dr. Thimineur, who concluded that the claimant had a traumatic spinal cord injury or brain injury. We have repeatedly held that whether or not a claimant’s medical condition was caused by a compensable injury is a factual question for the trial commissioner to resolve. Moawad v. American Eagle, 3701 CRB-6-97-10 (Aug. 25, 1999); Goodrow v. W.J. Barney Corporation, 11 Conn. Workers’ Comp. Rev. Op. 207, 1315 CRD-2-91-9 (Sept. 27, 1993). It is the trial commissioner’s duty and prerogative to weigh the credibility of the medical evidence and the testimony of the witnesses, including the claimant, and draw inferences based upon these impressions. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995); see also Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).

The trial commissioner possesses the exclusive discretion to evaluate the credibility of the evidence, including both the testimony of lay witnesses and the opinions of medical professionals. Pallotto, supra. In a workers’ compensation case, issues of credibility are the sole province of the trial commissioner. Kish v. Nursing And Home Care, Inc., 47 Conn. App. 620, 627 (1998), aff’d, 248 Conn. 379 (1999). Accordingly, in this case, it was solely within the discretion of the trial commissioner to accept the medical evidence which indicated that the December 19, 1995 incident did not cause the claimant to sustain a spinal cord injury or a brain injury.

The claimant’s appeal is dismissed.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 We further note that the claimant appeared on her own behalf before this board, and did not contend that her attorney should be present, which corroborates the attorney’s remarks in the attorney’s correspondence in the record that their relationship had broken down to the extent that he could no longer represent her. Thus, we need not rule on the attorney’s Motion to Withdraw. See Napolitano v. Bridgeport, 4388 CRB-4-01-5 (Oct. 22, 2001) (motion of claimant’s attorney to withdraw as counsel granted where it appeared confidence and trust between attorney and client had eroded). BACK TO TEXT