CASE NO. 04054 CRB-04-99-06 CLAIM NO. 400032277Workers’ Compensation Commission
AUGUST 9, 2000
The claimant was represented by Robert Cooney, Esq., Williams, Cooney Sheehy, One Lafayette Circle, Bridgeport, CT 06604-6021.
The respondent employer was represented by H. Jeffrey Beck, Esq., 251 North Avenue, Suite B-107, Bridgeport, CT 06606.
The Second Injury Fund was represented by Richard Hine, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120, who did not appear at oral argument.
This Petition for Review from the May 25, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District was heard March 10, 2000 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Stephen B. Delaney.
JOHN A. MASTROPIETRO, CHAIRMAN.
The claimant has petitioned for review from the May 25, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District. In that decision the trial commissioner found that the claimant failed to sustain his burden of proof that he suffered an injury to his back while at work on September 27, 1997. In support of his appeal, the claimant argues that the trial commissioner erred by ignoring undisputed medical evidence from the claimant’s treating physician which indicates that the claimant sustained a compensable injury. We find no error.
The trial commissioner found the following relevant facts. On September 27, 1997, the claimant was employed by the respondent as a limousine driver. On that date, the claimant was involved in an automobile accident in Bridgeport, which the trial commissioner determined arose out of and in the course of his employment. David Carter, a principal of the respondent employer, came to the accident scene and advised the claimant to complete his next trip to LaGuardia Airport in New York. The physical damage to the motor vehicle operated by the claimant was to the rear quarter panel of the passenger’s side. The claimant refused medical treatment at the scene of the accident. The claimant continued to work and did not treat with a doctor until February of 1998, when he saw Dr. Dworken. The trial commissioner concluded that the evidence establishing a compensable injury was not credible.
“The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” Spatafore v. YaleUniversity, 239 Conn. 408, 418 (1996). The power and duty of determining the facts rests on the trial 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. Fairv. People’s Savings Bank, 207 Conn. 535 (1988).
In support of his appeal, the claimant contends that it was error for the trial commissioner to conclude that the claimant failed to sustain his burden of proof that he suffered an injury as a result of the September 27, 1997 automobile accident. Specifically, the claimant argues that the undisputed medical evidence from the claimant’s treating physician, together with the fact that the respondent did not present any contradictory medical evidence, required the trial commissioner to conclude that the claimant sustained a compensable injury. We disagree.
The Appellate Court has repeatedly explained that the trier “is not required to accept uncontradicted expert testimony. The [trier] might reject it entirely as not worthy of belief or find that the opinion was based on subordinate facts that were not proven.” Cummings v. Twin ToolMfg. Co., 40 Conn. App. 36, 44 (1996) (citation omitted). Because it was the claimant’s burden to prove a compensable injury, and he did not do so in this case, “it is of no moment that the respondents did not present any medical evidence.” Menard v. People’s Bank, 3887 CRB-2-98-9
(Nov. 23, 1999), citing Reeder v. Zohne Industries, 3313 CRB-5-96-3
(Aug. 21, 1997), aff’d., 49 Conn. App. 904 (1998) (per curiam); see also Lalanne v. Greenwich, 3914 CRB-7-98-10 (Sept. 2, 1999).
In the instant case, the trial commissioner’s decision was based upon the credibility which he accorded the evidence, including the testimony of the claimant. Although the trial commissioner determined that an automobile accident did occur on September 27, 1997, he nevertheless concluded that the claimant did not sustain an injury as a result thereof. This conclusion is supported by the findings of fact which indicate that the claimant did not seek medical attention at the time of the accident; the claimant continued working on that day and for some time thereafter; the damage to the automobile driven by the claimant was the rear quarter of the passenger side; and the claimant did not seek medical attention until February of 1998.
In essence, the claimant is asking this Board to retry the facts of the case and overturn the trial commissioner’s credibility assessment, which this Board may not do. The trial commissioner’s decision is supported by the findings and by the evidence in the record, and as such it must stand.
The trial commissioner’s decision is affirmed.
Commissioners Robin L. Wilson and Stephen B. Delaney concur.