DUSTO v. ROGERS CORPORATION, 1496 CRB-1-92-8 (2-4-94)

HAROLD C. DUSTO, CLAIMANT-APPELLANT v. ROGERS CORPORATION, EMPLOYER and LIBERTY MUTUAL INSURANCE CO., INSURER, RESPONDENTS-APPELLEES

CASE NO. 1496 CRB-1-92-8Workers’ Compensation Commission
FEBRUARY 4, 1994

The claimant was represented by Mark D. Leighton, Esq., Leighton Katz.

The respondents were represented by Debra S. Dee, Esq., Law Offices of Rosenbaum Brennan.

This Petition for Review from the August 13, 1992 Finding Award and Dismissal of the Commissioner for the First District was heard April 30, 1993 before a Compensation Review Board panel consisting of Commissioners Frank J. Verrilli, James J. Metro and Angelo L. dos Santos.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER.

The claimant appeals from the August 13, 1992 decision of the First District Commissioner denying his claim for compensation. It is undisputed that the claimant sustained an injury on November 15, 1988, which involved a slight pull in his groin area, while at work for the employer. The trial commissioner found, however, that the claimant’s subsequent back condition and resulting surgery were not related to his groin injury sustained on November 15, 1988. On appeal, the claimant contends that these findings by the trial commissioner are inconsistent, requiring our reversal.[1] We do not agree.

The claimant contends that he met his burden of proof as to the compensability of his back injury. Whether the claimant’s ultimate disc herniation resulted from the 1988 workplace injury to the claimant’s groin area is a factual determination. Pinto v. B.C. Hardware Superior, 11 Conn. Workers’ Comp. Rev. Op. 210, 1351 CRD-6-91-12 (1993); Clarke v. UTC/Sikorsky Aircraft, 11 Conn. Workers’ Comp. Rev. Op. 170, 1327 CRD-4-91-10 (1993); Pereira v. State of Connecticut, 10 Conn. Workers’ Comp. Rev. Op. 229, 1209 CRD-7-91-4 (1993). As an appeals tribunal, however, we do not retry factual issues. We can only disturb the trial commissioner’s conclusions when they are without evidence, contrary to law or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The issue of the causal relationship between the 1988 workplace injury and the claimant’s later back problems was the subject of divergent medical opinion. Where the medical evidence was in conflict, the trial commissioner’s conclusion must stand so long as there is evidence to support it. Pulcinella v. Prudential Insurance Company, 10 Conn. Workers’ Comp. Rev. Op. 251, 1236 CRD-6-91-5 (1993). The trial commissioner apparently gave greater weight to the following opinion of Dr. Howard Abbott contained in Claimant’s Exhibit B2: “I do not feel that this recent ruptured disk has anything to do with that incident . . . concerning the groin injury.” As the commissioner’s conclusions were not without evidentiary support, contrary to law or based on impermissible or unreasonably factual inferences, these conclusions must stand. Fair v. People’s Savings Bank, supra.

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners Frank J. Verrilli and James J. Metro concur.

[1] The claimant’s challenge to the commissioner’s denial of his motion to correct is part and parcel of his challenge to the commissioner’s factual findings. For this reason, we do not address this claim separately, except in the following one respect. The claimant contends, based on a perceived ambiguity in the commissioner’s decision that in reaching his decision the trial commissioner may not have considered the transcript of the first (February 7, 1991) hearing in this matter, which hearing took place before a different commissioner. Rather than having a hearing de novo, the parties agreed that the deciding commissioner could and would review the transcript of the prior (February 7, 1991) formal hearing and render a decision based on all of the evidence. In his decision, the trial commissioner explicitly states that his ultimate conclusions are based “UPON REVIEW OF ALL THE EVIDENCE BEFORE ME, INCLUDING THE TRANSCRIPT OF THE HEARING OF FEBRUARY 7, 1991, AND ALL OF THE EXHIBITS . . . .” (Emphasis added.) Since a workers’ compensation commissioner is presumed to have performed his duty properly unless the contrary appears; Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 124, cert. denied, 223 Conn. 920 (1992); the claimant has failed to persuade us that the trial commissioner failed to consider certain evidence in reaching his decision.