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CASE NO. 5306 CRB-1-07-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 2, 2008
HARTFORD MEDICAL GROUP
ST. PAUL TRAVELERS
The claimant was represented by John D’Elia, Esq., Kennedy, Johnson, D’Elia & Gillooly, 555 Long Wharf Drive, New Haven, CT 06511.
The respondents were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the November 26, 2007 Finding and Dismissal of the Commissioner acting for the First District was heard July 25, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this case is appealing the denial of his claim for benefits from an injury he asserts was sustained at work. The trial commissioner denied his claim as he found the claimant did not prove the injuries occurred during the course of employment; primarily as he did not find the claimant credible. Therefore, we affirm the Finding and Dismissal and dismiss this appeal.
The trial commissioner found the following facts after holding a formal hearing on the claim. On June 28, 2006 the claimant was employed as a chiropractor by the Hartford Medical Group, where he had worked since the year 2000. He testified that when attempting to perform a full body adjustment on his first patient of the day, he felt a sharp pain in his back radiating into his right leg. The claimant worked a full day but testified that after a few hours, the injury was worsening. He testified that his staff noticed he was limping and recommended that he go to the Occupational Med Department at The Hartford Medical Group for treatment. The claimant testified he did go to the Occupational Medicine Clinic, but was advised by two staffers there, one of whom was Deb Cadman, that he could not be treated there as it would pose a conflict of interest. The claimant continued working at the respondent’s firm until he was finally examined on July 14, 2006 by Dr. William Druckemiller who had been treating the claimant for a pre-existing neck injury.
Dr. Druckemiller directed the claimant to have an MRI performed on his back. The results of the MRI showed a herniated disc. Dr. Druckemiller indicated a need for surgery, but recommended epidural steroid injections first. The claimant had an injection on August 16, 2006, and another on September 6, 2006. The injections were performed at Hartford Hospital. The claimant has been out of work since August or September of 2006 and has undergone physical therapy on his back and continued treating with Dr. Steven Beck. Dr. Druckemiller indicated in letters dated August 2, 2006 and August 21, 2006, that the claimant’s low back condition is related to a June 28, 2006 work injury. He based his opinion as to causation almost entirely on the history given by the patient and that the validity of that opinion is based upon the accuracy of the history.
The trial commissioner however, also noted evidence inconsistent with the claimant’s testimony. He noted that while the claimant testified that he filed a First Report of Injury form with the respondent dated July 10, 2006; his responses were both uncertain and evasive in nature when pressed on cross-examination as to whether the date on the form was accurate. The trial commissioner also noted the testimony of John Fundock, Chief Operating Officer of Hartford Medical Group. Mr. Fundock testified that the claimant never mentioned a workers’ compensation claim pertaining to a June 28, 2006 injury when negotiating a separation agreement from the respondent immediately following the alleged injury. He also testified the claimant also specifically requested that workers’ compensation issues be kept separate from the severance negotiations.
The trial commissioner also noted testimony adverse to the claimant from two employees at the Occupational Medicine Clinic. Rafael Acevedo and Deborah Cadman testified they were employed at this facility on June 28, 2006, but both testified that there was no policy of turning away individuals who presented themselves for treatment. Ms. Cadman specifically testified that at no time on June 28, 2006, did Dr. Ialacci go to the Occupational Medicine Clinic for treatment of an on-the-job back injury, and that had he been referred to another facility, a report would be in the file. No such report was presented as evidence. She also denied ever telling anyone a conflict of interest existed in treating patients at the Occupational Medicine Clinic.
Based on these subordinate facts, the trial commissioner concluded that the claimant did have an injury to his lumbar spine, but despite his familiarity with the workers’ compensation system, did not report this injury in an accurate or timely manner. The trial commissioner specifically noted that the claimant’s narrative of the events of June 28, 2006 was refuted by the credible and persuasive testimony of Deborah Cadman and Rafael Acevedo. Since the claimant’s testimony was not credible or persuasive, the claimant failed to establish that he sustained an injury on June 28, 2006, arising out of or in the course of employment. The trial commissioner dismissed the claim.
The claimant filed a Motion to Correct. The requested corrections were that Dr. Druckemiller’s testimony should be credited; that the claimant’s delay in reporting the accident and not addressing the matter in his separation negotiations was not material in nature; and there was evidence presented that the claimant was a credible individual. The trial commissioner denied these corrections and the claimant has pursued this appeal.
The claimant’s appeal is based upon his belief that since his medical evidence was uncontroverted, that the trial commissioner was obligated to find he had suffered a compensable injury. The claimant argues Daniels v. Alander, 75 Conn. App. 864 (2003) and Gianetti v. Norwalk Hospital, 266 Conn. 544 (2003) are binding authority for reversing the trial commissioner and finding the claimant’s injury compensable. We do not find this argument persuasive as the claimant made precisely the same argument in Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006), and we found the trial commissioner could properly disregard uncontroverted expert testimony when he found the claimant lacked credibility. See also Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008)(trial commissioner may decide not to credit an expert opinion which relies on a patient narrative the commissioner deems unreliable).
On numerous occasions, this board has repeated the axiom that the claimant has the burden of persuasion before the Commission. Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006). Central to sustaining the burden is the claimant establishing that he or she is a credible witness. Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB 6-07-7 (July 22, 2008). Such credibility determinations are “uniquely and exclusively the province of the trial commissioner.” Smith v. Salamander Designs, LTD, 5205 CRB-1-07-3 (March 13, 2008).
The trial commissioner determined that the claimant was not credible. This conclusion can be reached if the trier of fact does not believe the witness after having observed his testimony. Burton v. Mottolese, 267 Conn. 1, 40 (2003). In addition, in the present case the trial commissioner found the claimant’s narrative of having been refused treatment on the date of the alleged injury was specifically refuted by witnesses the trial commissioner did find credible. We must extend “every reasonable presumption” to the factual findings of the trial commissioner. Daniels v. Alander, 268 Conn. 320, 330 (2004). Therefore, we cannot find the trial commissioner’s conclusions herein were unreasonable.1
The trial commissioner herein decided the claimant failed in his burden of proof. We believe the record in this case demonstrates this was a reasonable conclusion. Since we must extend deference to such a conclusion, Do, supra, and Lentini, supra, we affirm the Finding and Dismissal and dismiss this appeal.2
Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.
1 The claimant urges us to revisit the factual finding as to credibility, citing Gianetti v. Norwalk Hospital, 266 Conn. 544, 561 (2003), “a reviewing court can draw its own factual conclusions, notwithstanding any contrary factual findings made by the trial court, when the record renders such conclusions inevitable as a matter of law.” Claimant’s Brief, pp. 8-10. The claimant, however, fails to address in his brief the adverse testimony of Mr. Acevedo or Ms. Cadman which was relied on by the trial commissioner. Given material testimony contravening the claimant’s narrative, it is impossible to conclude that it was “inevitable” that the trial commissioner would find the claimant was a credible witness. The claimant argues, “at every opportunity the Commissioner interpreted the evidence from the claimant in the light least favorable to him.” Claimant’s Brief, p. 9; but cites no precedent wherein such a determination constitutes reversible error. BACK TO TEXT
2 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the claimant’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT
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