Opinion
CASE NO. 1267 CRD-8-91-8
APRIL 6, 1993
The claimant was represented at trial by Jonathan Gould, Esq.
The respondents were represented by Richard Aiken, Esq., and Anne Kelly Zovas, Esq., both of Pomeranz, Drayton and Stabnick.
The Second Injury Fund was represented by Robin L. Wilson, Esq., Assistant Attorney General.
This Petition for Review from the July 29, 1991 Finding and Dismissal of the Commissioner for the Eighth District was heard May 29, 1992 before a Compensation Review Board panel consisting of the then Commission Chairman, John Arcudi and Commissioners Frank Verrilli and George Waldron.
OPINION
Claimant appeals the Eighth District denial of his claim. The commissioner issued a Finding and Award dismissing the claim on January 18, 1991. Subsequently he granted claimant's motion to open the matter, and he issued a Supplemental Finding and Dismissal July 29, 1991. Claimant's appeal is from that last decision. During the pendency of the appeal claimant filed a motion to present new evidence on February 28, 1992 and denied by the commissioner March 11, 1992.
In May 1981 claimant allegedly suffered a job related back injury, received some medical treatment and lost some days from work. On September 17, 1987 he filed a notice of claim alleging he reinjured his back at work August 11 1987 Respondents filed a contest of liability that same day. According to the evidence of Dr. Michael Luchini, a New Haven orthopedist, claimant was suffering from a fifteen to twenty percent permanent partial impairment of the lumbar spine in October, 1988.
It is the claimant's contention that he suffered back injuries arising out of his employment on May 5, 1981 and August 11, 1987 and that the fifteen to twenty percent permanent partial impairment of the back is due to those injuries and therefore compensable under the statute. The commissioner ruled that claimant had failed to prove that he suffered a compensable injury August 11, 1987 or that his permanent partial impairment of the spine was caused by a compensable injury.
The evidence before the commissioner, medical department notes (Exh. A) on August 12, 1987, indicate "no history of injury or strain — says was working overtime and noted pain after finishing work this A.M." Further. Dr. Luchini in his testimony was unable to attribute the permanent partial impairment which he found either to the May 5, 1981 or the August 11, 1987 claimed injuries. The conclusion as to whether there was a work injury and whether permanent partial impairment is due to a work injury are basically factual determinations. Fair v. Peoples Savings Bank, 207 Conn. 535 (1988) holds that an appellate tribunal cannot disturb such conclusions by a trier unless they are found without evidence, are contrary to law or based on unreasonable or impermissible factual inferences. Here, the evidence we have cited amply supports the conclusions of the commissioner. Therefore there is no basis for overturning his ruling.
With respect to claimant's motion to submit new evidence, the testimony sought to be proffered is that of Dr. Caldwell, claimant's family physician. No explanation is offered why that testimony was not presented in the hearings of March 22, June 6 and October 24, 1990 or in the reopened hearings of April 22, and June 4, 1991. Nor is any claim made that such testimony was not available to be presented at those prior hearings. Neither does it appear to be really new evidence. We therefore see no reason why the commissioner should have opened the proceedings a second time to hear this evidence.
We affirm the decision of the commissioner denying the claim and dismiss claimant's appeal.
Commissioners Frank Verrilli and George Waldron concur.