JAMES BASS, CLAIMANT-APPELLANT vs. HIGHWAY SAFETY DESIGN, EMPLOYER and TRAVELERS INSURANCE COMPANY, INSURER, RESPONDENTS-APPELLEES

CASE NO. 241 CRD-1-83Workers’ Compensation Commission
MAY 23, 1984

The Claimant-Appellant was represented by Henry J. Kroeger, III, Esq.

The Respondents-Appellees were represented by Robert E. Beach, Jr., Esq., with whom on the brief was John P. Clarkson, Esq.

This Petition for Review from the June 13, 1983 Finding and Denial of Claim of the Commissioner for the First District, Acting for the Sixth District, was argued February 24, 1984 before a Compensation Review Division Panel consisting of the Commission Chairman, John Arcudi and Commissioners Robin Waller and Gerald Kolinsky.

FINDING AND DISMISSAL

The Finding and Denial of Claim of the Commissioner below is adopted as the Finding and Denial of Claim of this Division.

The appeal of the Claimant-Appellant is DISMISSED. The Finding and Denial of Claim of the Commissioner is AFFIRMED.

OPINION

GERALD KOLINSKY, Commissioner.

From a Finding and Denial of the Claimant’s Claim, the claimant-appellant has appealed.

The facts of this case reveal that on August 23, 1976, the claimant-appellant sustained a compensable injury, for which a Voluntary Agreement was issued describing the injury as “Fracture, Left Wrist,” and awarding the claimant-appellant compensation for 35% loss of use of his minor hand.

In addition to such injury of the minor hand, the claimant appellant claimed to have sustained multiple injuries to various parts of his body, including his left hand, left wrist, neck, back and left side and claimed various compensation benefits for lost time, permanent disability of the cervical spine, payment of related medical expenses, interest and attorney’s fees.

The mechanics of the injury were recited in some detail in the Commissioner’s Finding, and concluded that the claimant was struck in the left wrist when a load binder loosened, causing him to fall backward to the ground, landing on his left shoulder and left side.

Later that evening, he obtained emergency room care at the Hartford Hospital and was referred to Dr. Linburg the next day, and surgery was recommended about three weeks later on the left wrist. The claimant’s physician continued to treat him until March 17, 1978, a period of just over 18 months, during which period a total of three surgeries were performed on the claimant’s left wrist.

Dr. Linburg had no record or recollection of any problems which the claimant had with his neck or left shoulder during the time when he attended the claimant.

Subsequent to March 17, 1978, the claimant mentioned to Dr. Daoud that he had been having pain in the left shoulder and neck.

The claimant first saw Dr. O’Brien in August, 1979 for a problem unrelated to the 1976 compensable injury and contended that he complained to Dr. O’Brien about left shoulder and neck pain. It was not until January 31, 1980 that the claimant saw Dr. O’Brien for problems related to the compensable injury of 1976, or referral from Dr. Daoud in connection with difficulties involving the left hand.

The Commissioner found that the first mention by the claimant of involvement of the left shoulder or neck to Dr. O’Brien was not until March 10, 1980, which the claimant related back to the accident of August 23, 1976.

During the latter part of 1980, the claimant worked as a part-time long distance tractor trailer driver. On a trip to Tulsa, Oklahoma in December, 1980, he felt pain in his left side and left shoulder, and in January, 1981, saw Dr. O’Brien for such complaints, for which a referral was made by Dr. O’Brien to a neurosurgeon. On January 22, 1981, cervical surgery was performed on the claimant.

The Commissioner, after due hearings, found that “much of the evidence in this matter was in conflict, and there were many inconsistencies between the claimant’s claims and the facts as found:

“Specifically, claimant’s contentions that since his accident August 23, 1976 he has complained constantly to the physicians whom he has seen of pain in his left shoulder and neck is not factually supported by the record. Furthermore, claimant’s contentions stated at the hearing that since the accident he has experienced constant pain and symptomatology in his left shoulder and neck about which he has complained constantly to various physicians he has seen since the accident is not factually supported by the record.”

Thus, other than the injury to the left wrist, the Commissioner denied the claimant’s claim for other injuries involving the left arm, shoulder, left side and neck.

Medical evidence came before the Commissioner in the form of depositions of Dr. Linburg and Dr. O’Brien. The grounds of appeal are stated by the claimant in his Reasons For Appeal, and may be summarized as maintaining that the Commissioner did not give sufficient weight and credit to the opinion of Dr. O’Brien, who felt that there was a causal relationship between the 1976 accident and the claimant’s subsequent problems which culminated in cervical surgery.

Although the Commissioner did not use the word “credibility” in his Denial of the claim, it is clear from a reading of his decision, that he did not accept the claimant’s version of how the various injuries were sustained. It is also manifest that the Commissioner place great reliance upon the incongruity between the claimant’s exposition of constant complaints to various physicians, and the lack of corroboration thereof by said physicians.

It is well-established that “[i]t is within the province of the Commissioner alone to determine, on conflicting and confusing evidence what the facts are, and neither appellate court will change his finding unless it appears that he has found facts without evidence, or that he could not reasonably reach the conclusions he has stated.” Battey v. Osborne, 96 Conn. 633, 634 (1921). This rule has been repeated on numerous occasions throughout the years.

It should be noted that the claimant-appellant had the option to request a correction of the Finding, pursuant to Section 31-301-4, Administrative Regulations, yet such option was not pursued. Consequently, the “conclusions drawn by the Commissioner from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima vs. UAC/Norden Division, 177 Conn. 107, 118 (1979).

Based upon the foregoing principles, we cannot say that the Commissioner’s conclusions were incorrect, or that he drew illegal or unreasonable inferences from the subordinate facts.

The decision of the Commissioner is Affirmed.

Chairman Arcudi and Commissioner Waller join in this opinion.