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CASE NO. 4415 CRB-7-01-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 5, 2002
GALLAGHER BASSETT SERVICES
The claimant was represented by John Whittlesey, Esq., 310 Douglas Road, Chappaqua, NY 10514.
The respondents were represented by David J. Weil, Esq., Nuzzo & Roberts, One Town Center, P. O. Box 747, Cheshire, CT 06410.
This Petition for Review from the June 26, 2001 Finding and Order of the Commissioner acting for the Seventh District was heard January 25, 2002 before a Compensation Review Board panel consisting of Chairman John A. Mastropietro and Commissioners Donald H. Doyle Jr., and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 26, 2001 Finding and Order of the Commissioner acting for the Seventh District. In that decision the trial commissioner found that the claimant was not totally disabled, and thus granted the respondents’ Form 36, which had been filed on October 26, 1999. In support of his appeal, the claimant argues that the claimant’s uncontroverted testimony indicates that he continued to be totally disabled. The claimant also argues that the evidence indicates that he has a permanent partial disability of his brain. We find no error.
The trial commissioner found the following relevant facts. The claimant worked as a research chemist for the respondent employer when he began becoming seriously ill at work during the early part of 1998. The claimant testified that due to his exposure to chemicals at his job site, he suffered from altered senses of smell and taste, mental deterioration, headaches, welts and hives, dizziness, near fainting, and memory loss. The claimant reported this to the company physician, and treated with a family physician and was referred on to various specialists. The claimant remained at work until May of 1998. Subsequent to February 1998, the claimant sought treatment from Dr. Ostroff, who continues to be his principal medical provider. The claimant was also referred to Dr. Watsky, who tested the claimant for sensitivity to certain chemicals which he may have been exposed to at work, and found no positive reactions to the particular chemicals tested. The respondents attached a copy of Dr. Watsky’s report to their October 26, 1999 Form 36.
The claimant was referred to the Yale University Occupational and Environmental Medicine Department, which issued a report on October 27, 1999, recommending that the claimant avoid those chemicals in the workplace that would cause sensitivity symptoms, but also recommending that the claimant seek a vocational change and attempt to enter a vocational rehabilitation program.1 Another report was issued on January 12, 2000 which indicated that the claimant suffered from multiple chemical sensitivity, and recommended that the claimant not return to work as a research chemist, but provided no specific restrictions as to other job possibilities. Findings, ¶ 26. Additionally, a report was issued on April 26, 2000 which assessed a 20% permanent partial disability of the claimant’s whole person.
The claimant testified that subsequent to the workplace exposures, he has become extra sensitive to many other chemical agents, including many commonly used every-day items such as detergents, lotions, and perfumes. The claimant conceded that he no longer suffers from hives or numbness of the hands, nor was he suffering from headaches. The claimant submitted “voluminous medical reports from various treating physicians and other examining doctors .” Findings, ¶ 9. He testified that although he was looking for work, he is unable to work at all as he is affected by chemical agents in any work environment or other setting, including the home or the supermarket.
The trial commissioner concluded that the claimant was capable of working and was no longer totally disabled, and thus granted the October 26, 1999 Form 36. “Whenever a claimant asserts that he is totally incapacitated, the burden of proving such a disability falls upon him.” Garcia v. Bridgeport, 3595 CRB-4-97-4 (June 8, 1998), citing Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 42 (1996); Curtiss v. State of Connecticut/Dept. of Mental Retardation Region 2, 3220 CRB-6-95-11 (Aug. 20, 1997). We have repeatedly held that whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994).
The power and duty of determining the facts rests on the 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 support of his appeal, the claimant contends that his testimony indicated that he was totally disabled, and further contends that the trier erred by relying on the medical report of Dr. Watsky in approving the Form 36. However, it is clear that the trial commissioner considered all of the evidence presented, including the medical evidence and the claimant’s testimony, and concluded that the claimant was no longer totally disabled. This conclusion is fully supported by the evidence and by the findings, and was neither based on impermissible or unreasonable factual inferences nor contrary to law. Therefore, it must stand. Fair, supra.
In support of his appeal, the claimant has attached three medical documents as follows: (1) a report dated October 16, 2001 signed by Dr. Ostroff; (2) an October 3, 2001 report signed by Dr. Taiwo and Dr. Poljak; and (3) a January 19, 2001 report signed by Dr. Moore. The admissibility of additional evidence is controlled by Administrative Regulations § 31-301-9 which states that additional evidence will be admitted if such evidence is material and if there were good reasons for failure to present it at the time of the proceedings before the trial commissioner. The evidence must not only be unavailable at the time of the proceedings, but must also be undiscoverable with due diligence. Rodrigues v. American National Can, 4329 CRB-7-00-12 (Jan. 2, 2002), citing Crouse v. A.A.I.S., Inc., 3797 CRB-3-98-4 (June 16, 1999) and Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 550 CRD-7-87 (Dec. 1, 1988).
In the instant case, the claimant could have obtained these reports prior to the formal hearing and has not offered any reason for not doing so. We will not allow a party to try his case in a piecemeal manner. See Prioli v. State/Connecticut State Library/Arts Commission, 3955 CRB-6-98-12 (Jan. 13, 2000), aff’d, 64 Conn. App. 301 (2001). Thus, the additional evidence having been discoverable at the time of trial and no good reason for the failure to present this evidence at the time of trial having been given, the claimant’s Motion to Submit Additional Evidence is denied. See Rodrigues, supra.
Finally, we will address the claimant’s contention that he has sustained a 20% permanent partial impairment of his brain. The trial commissioner specifically found that the 20% rating was made as a “whole person” rating which is not permitted under our Act. Garcia v. Legare Plumbing & Heat, 3856 CRB-2-98-7 (Sept. 23, 1999); see also Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793 (1999) (held § 31-308(b) constitutional). Accordingly, the claimant may submit a request for a permanent partial disability award if a physician assesses a permanent partial disability to a particular body part as allowed under § 31-308(b).
The trial commissioner’s decision is affirmed.
Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.
1 The report states, in part, as follows: “Since it seems unlikely that [the claimant] will be able to return to his prior employment, he should be encouraged to seek retraining for a different line of work in order to continue gainful employment. His long-term prognosis will, of course, be much better if he is able to maintain some form of gainful employment, being careful to avoid frequent exposures that trigger his symptoms.” Respondents’ Exh. 1. BACK TO TEXT
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