STEARNS v. FIRST NATIONAL SUPERMARKETS, 588 CRD-1-87 (1-26-89)

ALVIN STEARNS, CLAIMANT-APPELLANT vs. FIRST NATIONAL SUPERMARKETS, EMPLOYER, SELF-INSURED, RESPONDENT-APPELLEE

CASE NO. 588 CRD-1-87Workers’ Compensation Commission
JANUARY 26, 1989

The claimant was represented by Edmund T. Grady, Esq., Riscassi Davis, P.C.

The respondent was represented by Jason Dodge, Esq., and James L. Pomeranz, Pomeranz, Drayton
Stabnick.

This Petition for Review from the April 16, 1987 Finding and Award of the Commissioner At Large acting for the First District was heard August 19, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and A. Thomas White, Jr.

OPINION

JOHN ARCUDI, Chairman.

Claimant seeks review of the April 16, 1987 ruling by the Commissioner at Large approving the discontinuance of temporary total disability payments. He argues that the trial Commissioner’s decision was not in accordance with the evidence.

The approval of a Form 36 is a matter controlled by Sec. 31-296[1] and requires the trial Commissioner to determine if the claimant’s total incapacity still continues. See, Platt v. UTC/Pratt Whitney Aircraft Dip., 3 Conn. Workers’ Comp. Rev. Op. 3
(1985). Whether a claimant is totally incapacitated presents a question of fact. Our review of factual findings and conclusions is limited to a determination of whether the factual findings were contrary to law or based on impermissible evidentiary inferences, Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In this case, the evidence presented below was conflicting. Claimant’s treating physician, Dr. Sebastian Mazzicato, testified in support of claimant’s claim of continued incapacity while respondent’s witnesses, Dr. Benjamin Wiese and private investigator, Vincent Hunt presented evidence on the basis of which the commissioner could find disability had ceased[2] .

As the evidence was in conflict and there was evidence support the Commissioner’s conclusions, we affirm the trial Commissioner’s April 16, 1987 Finding and Award, Damelio v. Anaconda, Inc., 15 Conn. App. 805 (1988) (per curiam) aff’g 4 Conn. Workers’ Comp. Rev. Op. 31 (1987).

Commissioners Andrew Denuzze and A. Thomas White, Jr. concur.

[1] Sec. 31-296 also pertains to Voluntary Agreements. For the record we note that a Voluntary Agreement between the parties was approved September 22, 1982.

[2] We note for the record that Mr. Hunt’s testimony was accompanied by a videotape survey of the surveillance of the claimant. The videotape was introduced into evidence by counsel for the respondent and no objection to its introduction into evidence was made by counsel for claimant. Transcript of January 18, 1985 at 76.