Opinion
CASE NO. 1315 CRD-2-91-9
SEPTEMBER 27, 1993
The claimant was represented by Lloyd E. Hinchey, Esq., who did not appear at oral argument or file a brief.
The respondents-appellants, W.J. Barney Corporation and American Policyholders Insurance were represented by David A. Kelly, Esq., Montstream and May. The respondents-appellees, Stone and Webster and Aetna Casualty and Surety Company were represented by Margaret Corrigan, Esq. and Lucas D. Strunk, Esq., Pomeranz, Drayton and Stabnick.
The Second Injury Fund was represented by Assistant Attorney General Taka Iwashita, Esq., who did not appear at oral argument but did join in the brief of the respondents-appellants.
This Petition for Review from the September 12, 1991 Finding and Award of the Commissioner for the Second District was heard September 25 1992 before Compensation Review Board panel consisting of Commissioners Frank J. Verrilli, James J. Metro and George A. Waldron.
OPINION
The compensability of the claimant's August 3, 1988 workplace injury while in the employ of respondent employer W. J. Barney Corporation is not in dispute. Rather, the issue on appeal is whether respondents W. J. Barney Corporation and American Policyholders Insurance are solely liable for compensation for that injury as a new injury, determined by the Second District Commissioner in his September 12, 1991 Finding and Award, or whether the claimant's 1988 injury was an aggravation of a pre-existing condition related to January 9, 1986 workplace injury which occurred while the claimant was in the employ of respondent Stone and Webster, requiring apportionment of liability between both respondent employers.
Whether the claimant suffered a new compensable foot injury rather than an aggravation of the prior injury is a factual determination for the trial commissioner to make. Glenn v. Terry Corporation, 8 Conn. Workers' Comp. Rev. Op. 87, 806 CRD-2-89-1 (1990). The conclusions of the trial commissioner "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." Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988), quoting Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).
Here, the commissioner's determination is supported by sufficient evidence. The claimant testified that when he went to work for W. J. Barney Corporation his foot felt "okay", did not give him pain and required no medication. See Transcript of October 3, 1989, pp. 11, 23. The claimant experienced no problems with his foot while working for W. J. Barney Corporation during his first two days on the job prior to August 3, 1988. See Transcript of October 3, 1989, p. 17. Additionally, Dr. James H. Derby, an orthopedic surgeon to whom the claimant was referred, concluded in a letter dated January 31, 1991, that the claimant suffered no permanent partial disability due to the previous injury and that his August 3, 1988 injury "was a new injury and not an aggravation of a pre-existing injury." See Respondent Exhibit 3.
Respondents W. J. Barney Corporation and its insurer nevertheless contend that the commissioner's findings and conclusion are unreasonable in light of the following additional evidence in the record: (1) testimony suggesting that the claimant's recovery from the earlier injury was incomplete; (2) a March 6, 1989 report from Dr. Derby describing the claimant's condition as "probably [an] aggravation of his injury from 1986; and (3) clear and unequivocal statements from Dr. Irving J. Buchbinder, a podiatrist who treated the claimant, opining that the injury of August 3, 1988 was an aggravation of a pre-existing condition and that the original injury contributed seventy percent to the claimant's condition while the subsequent, aggravating injury contributed thirty percent.
There certainly was evidence presented to support a conclusion that the claimant had aggravated a pre-existing injury. There was, however, ample evidence to justify a different conclusion, the conclusion reached by the trial commissioner. The conclusion reached below was dependent on the weight and credibility to be accorded to the evidence. We will not disturb conclusions which are so based. Tovish v. Gerber Electronics, 32 Conn. App. 595 (1993); Neal v. UTC/Pratt and Whitney, 10 Conn. Workers' Comp. Rev. Op. 163, 1199 CRD-8-91-3 (1992). Because we do not retry the facts, it was within the province of the trial commissioner to resolve any alleged inconsistencies or contradictions in the evidence. See Miller v. Kirshner, 225 Conn. 185, 198-99 (1993); State v. Sherbacow, 21 Conn. App. 474, 479-80, cert. denied, 216 Conn. 808 (1990); State v. Sesler, 33 Conn. Sup. 747, 751, cert. denied, 172 Conn. 702 (1976). Even if the evidence below was in conflict, there was sufficient evidence presented to support the commissioner's findings and his ultimate conclusion.
We, therefore, affirm the Second District commissioner and deny the appeal.
Commissioners James J. Metro and George A. Waldron concur.