Nau v. Spartech Polycast Technology Corp.

CASE NO. 4555 CRB-7-02-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 25, 2003

WISLER NAU

CLAIMANT-APPELLANT

v.

SPARTECH POLYCAST TECHNOLOGY CORP.

EMPLOYER

and

SENTRY INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant-appellant was represented by Brendan T. Canty, Esq., Kerin & Canty, 193 East Avenue, Norwalk, CT 06855.

The respondents-appellees were represented by Lynn M. Raccio, Esq., and James Delaney, Esq., Law Office of Murphy & Barrett, LLP, 1062 Barnes Road, Suite 105, Wallingford, CT 06492.

This Petition for Review from the July 29, 2002 Finding of the Commissioner acting for the Seventh District was heard March 28, 20031 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals from the July 29, 2002 Finding of the Commissioner acting for the Seventh District. In that Finding the trial commissioner concluded that on July 24, 2001 the claimant sustained an injury to his right master thumb which arose out of and in the course of his employment. The trial commissioner also concluded that injuries claimed as a result of that work incident to claimant’s hands, left non-master shoulder and cervical spine did not arise out of and in the course of employment.

The pertinent facts are as follows. On July 24, 2001 the claimant was employed by the respondent employer as a casting inspector. On that date the claimant was removing a hose from behind a machine on which he was working. In the course of removing the hose the claimant tripped and fell. The claimant’s right master thumb began to bleed. The claimant advised his immediate production supervisor, Nehemiah Jennings. The claimant advised Mr. Jennings that he wanted to go out and put some ice on his right thumb. The claimant got some ice from a cooler used by other employees to store refreshments and placed the ice on his thumb. The claimant worked the remainder of that day’s shift.

On July 25, 2001 the claimant reported to work and complained to Ramon Colon, the Human Resources Administrator about excessive heat around a machine on which he was working and, almost as an aside, mentioned the injury to his right thumb occurring the previous day. Thereafter, the claimant left work and went to Stamford Hospital where he complained of injuries to both hands, left shoulder and neck. The medical examiner after taking x-rays determined, inter alia, that the claimant had contusions to both hands and a sprain/strain to his neck. Thereafter the claimant began treatment with a chiropractor, Dr. Mel Gabriel who treated the claimant thirty times between July 25, 2001 and November 14, 2001. Dr. Gabriel referred the claimant to a physiatrist, Dr. Peter L. Bertacchi who prescribed physical therapy and pain management for the claimant’s left shoulder and neck.

The trial commissioner also found the claimant often drove a taxi when not working at the respondent employer’s facility. The claimant stated he worked as an independent contractor when driving the taxi, and thus, was not making a claim for concurrent employment. Sometime prior to July 24, 2001 the taxi driven by the claimant was rear ended. The claimant claimed he sustained no injuries as a result of that motor vehicle collision.

On appeal, the ultimate issue raised is whether the trial commissioner erred in his conclusion the claimant did not sustain an injury to his neck and left shoulder as a result of the July 24, 2001 work incident. Specifically, the claimant contends that it was error for the trial commissioner not to find a causal nexus to the claimed neck and shoulder injuries where no countervailing medical evidence was presented by the respondents.

What the claimant seeks on appeal is to retry his case. However, it is well established that this tribunal does not engage in de novo review. The conclusions reached by the trier in this matter result from the weight and credibility he assigned to the testimony and evidence presented. That is the function of the trial commissioner and in that capacity he is entitled to believe all or part of evidence proffered or to reject it entirely. Tartaglino v. Department of Correction, 55 Conn. App. 190 (1999), cert. denied, 251 Conn. 929 (1999). The trier was not bound to rely on the evidence offered by the claimant in support of his claim where no evidence was put forth by the respondents refuting the claim. Adams v. Leisure Limousine, LLC, 4054 CRB-4-99-6 (August 9, 2000). See also, Reeder v. Zohne Industries, 3313 CRB-5-96-3 (Aug. 21, 1997), aff’d, 49 Conn. App. 904 (1998) (per curiam).

While the claimant would have us attach greater weight to the reports generated by Stamford Hospital, it was abundantly clear that the opinions of its medical staff resulted from the injury history provided to that medical provider by the claimant. Additionally, in light of the claimant’s statements made under cross examination and the testimony of Nehemiah Jennings and Ramon Colon, there was support in the evidentiary record for the trier’s determination in this matter. The conclusion reached by the trial commissioner will not be disturbed unless without evidence, based on unreasonable or impermissible factual inferences, or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Thus, the conclusion reached by the trial commissioner stands.

Finally we note claimant assigned as error the trier’s failure to grant certain portions of his Motion To Correct. We note that the trier did grant portions of the claimant’s Motion To Correct in his ruling of September 4, 2002. We find no error on the part of the trier in failing to grant other parts of the claimant’s Motion To Correct. As our Supreme Court noted in Klepp Wood Flooring Corporation v. Butterfield, 176 Conn. 528, 531 (1979):

That a witness testified to a fact without direct contradiction is not in itself sufficient to show that the fact was admitted or undisputed. Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619 (1969). The question of credibility is for the trier. Although there was evidence to support some of the facts claimed, it was solely within the province of the trial court to determine the credibility of that evidence. National Broadcasting Co. v. Rose, 153 Conn. 219, 223, 215 A.2d 123 (1965). That determination will not be disturbed on appeal. Other facts sought to be included are not material to the issues in the case and the trial court is not required to include them in its finding. Yale University v. New Haven, 169 Conn. 454, 463, 363 A.2d 1108 (1975). Consequently, the finding of the trial court is not subject to amendment.

See also, Vazquez v. Unifirst Corp., 4498 CRB-4-02-3 (March 7, 2003).

We therefore affirm the July 29, 2002 Finding of the Commissioner acting for the Seventh District.

Commissioners James J. Metro and Howard H. Belkin concur.

1 We note that while this appeal was pending, scheduling of this matter was delayed at the request of the appellant. BACK TO TEXT