Sellers v. Sellers Garage, Inc.

The respondent employer Sellers Garage and Royal Insurance Co. were represented by Richard Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from December 11, 2003 Finding and Dismissal of the Commissioner acting for the Fifth District was heard August 27, 2004 before a Compensation Review Board panel consisting of Commissioners A. Thomas White, Jr., Ernie R. Walker and Howard H. Belkin.

OPINION

A. THOMAS WHITE, JR., COMMISSIONER. The claimant has appealed from the December 11, 2003 Finding and Dismissal of the Commissioner acting for the Fifth District.1 In the Finding and Dismissal the commissioner denied the claimant appellant’s claim of having sustained a fifty (50%) percent permanent partial disability to his brain.

The pertinent facts in this matter are as follows. The claimant sustained a compensable injury on or about March 21, 19972 when he was struck on the head. Claimant contends that as a result of that injury he has suffered headaches which have left him with a fifty percent (50%) permanent partial disability of the brain. In the proceedings before the trial commissioner the claimant appeared pro se and introduced various reports, among them were the reports of his treating physician, Dr. Steven Levin, a pain management specialist with the Yale Center for Pain Management. See Claimant’s Exhibit A.

In proceedings before the trial commissioner the respondents proffered the medical opinion of Dr. James P. Donaldson, a neurologist. See Respondents’ Exhibit 2. The instant appeal is a classic example of the weight and credibility assigned to the evidence by the trial commissioner and the losing party’s challenge to that assignment. Ultimately, on appeal the claimant asks this panel to determine the trial commissioner erred in giving greater weight to the opinions of Dr. Donaldson and others, and thereby concluding the claimant had a zero percent (0%) permanent partial disability to his brain/head. However, the weight and credibility to be assigned the evidence presented before the trial commissioner is a matter solely within his purview and will not be disturbed unless resulting from an abuse of the trier’s discretion. Papapietro v. Bristol, 4674 CRB-6-03-6 (May 3, 2004).

As part of his appeal the claimant filed a Motion to Correct in which he seeks to overturn many of the trier’s findings. When reviewing the legal appropriateness of a trier’s findings, “The findings of the trial commissioner will not be corrected unless the facts found are without evidence or omit material facts that are admitted or undisputed. Grady v. St. Mary’s Hospital, 179 Conn. 662 (1980).” Brown v. State/DMR, 4748 CRB-6-03-11 (October 18, 2004). Additionally, if the factual findings were corrected as requested and the changed findings do not compel a different conclusion, we need not order the alteration of the findings. Loffredo v. Wal-Mart Stores, Inc., 4369 CRB-5-01-2 (February 28, 2002). Our review does not reflect that the trial commissioner’s denial of the Motion to Correct was legally inappropriate.

We do wish to point out one particular factual correction that the claimant seeks which if not read in the context of proceedings before the trial commissioner might appear to be without evidentiary foundation. We refer to the claimant’s challenge to Finding #9. In that factual finding the trier found “Dr. Levin did not note in the March, 2002 report or in a follow up September, 2002 report any of the guidelines or criteria noted in the American Medical Association Guide To Permanent Disability, nor did he note any objective criteria in making this assessment.” The claimant claims Dr. Levin did refer to the American Medical Association Guide To Permanent Disability in his September 2002 follow-up. Our review of Dr. Levin’s follow-up reflects nothing more than his addition of a bald assertion that his findings are consistent with AMA guidelines, yet the assertion fails to explain any specific criteria nor even what edition of the guidelines he may have consulted in making his assessment.

We therefore affirm the December 11, 2003 Finding and Dismissal of the Commissioner acting for the Fifth District.

Commissioners Ernie R. Walker and Howard H. Belkin concur.

1 For the record we note the claimant has sought extensions of time during the period this appeal was pending. We also note that this matter was originally scheduled to be heard in conjunction with claimant’s appeal in Sellers v. Work Force One, 4807 CRB-5-04-5. However, at the request of the claimant extensions were granted and the two appeals were heard separately. BACK TO TEXT

2 We note that matters relating to claimant’s compensable injuries were previously the subject of proceedings before this tribunal. See Sellers v. Sellers Garage, 4391 CRB-5-01-5 (April 26, 2002), [hereafter Sellers I] aff’d, 80 Conn. App. 15 (2003), cert. denied, 267 Conn. 904 (2003). In the Compensation Review Board’s review in Sellers I, the panel considered claims arising from a workplace incident occurring September 25, 1995 wherein the claimant suffered an injury to this right wrist and right shoulder. Following that injury on or about November 14, 1995 the claimant suffered pain in his left wrist due to overuse. On March 21, 1997 he sustained a compensable injury when he was struck on the head. The aforementioned injuries occurred while the claimant was employed by Sellers Garage and Royal Insurance was the insurance carrier on the risk. Liability was accepted by voluntary agreement. On April 20, 1998 the claimant while in the employ of Work Force One claimed increased pain in the right wrist. Hanover Insurance, the carrier on the risk at that time, disputed the claim. Claims said to have arisen while both Royal Insurance and Hanover were the carriers for Sellers Garage and Work Force One respectively were considered by Commissioner Donald Doyle in his May 9, 2001 Finding and Award. That Finding and Award was appealed to this tribunal and our opinion was issued in Sellers I. The claimant then appealed this tribunal’s opinion in Sellers I to the Appellate Court. In the Appellate Court’s opinion Sellers v. Sellers Garage, 80 Conn. App. 15 (2003) the opinion of the Compensation Review Board was affirmed. BACK TO TEXT