CASE NO. 1098 CRD-7-90-8Workers’ Compensation Commission
DECEMBER 30, 1991
The claimant was represented by Judith Rosenberg, Esq., Wofsey, Rosen, Kweskin Kuriansky.
The respondents were represented by Douglas Drayton, Esq., Anne Zovas, Esq. and Margaret Corrigan, Esq. all of Pomeranz, Drayton Stabnick.
This Petition for Review from the August 17, 1990 Finding and Dismissal of the Commissioner for the Seventh District was heard June 28, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Andrew Denuzze and Angelo dos Santos.
OPINION
JOHN ARCUDI, CHAIRMAN.
This matter was before us once before, 5 Conn. Workers’ Comp. Rev. Op. 126, 483 CRD-7-86 (June 29, 1988), on the issue of a denial of a motion to preclude. The present appeal by the surviving widow contests the Seventh District’s conclusion that decedent’s death did not arise out of and in the course of employment.
Decedent was employed by the respondent, a firm of consulting engineers, as a project manager. On occasion and for some time prior to his death, the decedent had been travelling between his home and Harrisburg, Pa. to perform job duties in connection with a post office construction job assignment. This required him to travel once or more every two weeks to the job site in Harrisburg. On October 5, 1984, he died as a result of a cardiac arrest while at work.
The claimant widow contends that about a year before the death, the decedent had mistakenly failed properly to review the shop drawings on the Harrisburg post office job and that this mistake was thought by the decedent to expose the respondent employer to sizeable [sizable] costs. She argued that the concern and anxiety of the decedent in relation to the alleged mistake resulted in mental stress which led to the fatal cardiac arrest.
The commissioner found in Paragraph #11 of the August 17, 1990 decision that the mistake which was alleged to have caused anxiety and stress in the decedent was resolved without cost to the employer some time before the death. He therefore ruled the cardiac arrest did not arise in and out of the course of the employment.
There was evidence from which the trier could reasonably conclude that claimant had failed to sustain her burden of proof that the cardiac arrest and death did arise out of and in the course of his employment. See the testimony of Werner Rosenbaum, April 23, 1990 Hearing TR. pp. 22-23, where the witness indicates that the mistake which was asserted to have so distressed the decedent was resolved at the time of the decedent’s death. While the claimant may be correct that in fact the mistake was not resolved and that it weighed on the decedent’s mind, the Rosenbaum testimony pointed to a different conclusion, the one eventually adopted by the commissioner. His finding was based on the weight and credibility he gave to the evidence before him. We will not disturb a conclusion so based. Rivera v. Guida’s Dairy, 167 Conn. 524 (1975).
A further claimant argument is that the respondent failed to present any evidence which conflicted with the testimony of the claimant’s expert witness, Dr. Edward Harvey Schuster. However a trial commissioner is free to reject testimony even if seemingly uncontradicted. See Colucci v. Mattatuck Manufacturing Co., 1000 CRD-5-90-4 (decided October 30, 1991); LaGueux v. Veilleux, 876 CRD-6-89-6 (decided August 13, 1991); See also, Barrila v. Blake, 190 Conn. 631 (1983). Moreover certain facts assumed to be true by Dr. Schuster in forming his opinion as to causation were disputed. Thus, if the trier did not credit those hypothetical facts on which the doctor’s conclusion was based, logic would permit him to reject the expert witness’s conclusion. From all the evidence presented the commissioner could reasonably infer that the stress which may have resulted in the decedent’s cardiac arrest was not related to his work.
We therefore affirm the August 17, 1990 Finding and Dismissal of the Seventh District Commissioner and dismiss the appeal.
Commissioners Andrew Denuzze and Angelo dos Santos concur.