Opinion
CASE NO. 73-CRD-2-81
DECEMBER 29, 1981
The appellee-claimant was represented by Thomas B. Wilson, Esq.
The appellant-respondent was represented by Robert D. McGann, Esq.
This Petition for Review from the May 18, 1981 Finding and Award and Supplemental Corrected Finding and Award of May May 26, 1981 of the Commissioner for the Second District was argued August 21, 1981 before a Compensation Review Division panel consisting of Commissioners Arcudi, Berte' and Kolinsky.
FINDING AND AWARD
The May 18, 1981 Finding and Award of the Commissioner for the Second, District as corrected May 26, 1981 is affirmed and adopted as the Finding and Award of this Division.
OPINION
This matter arose out of a work related back injury April 3, 1979. The Commissioner for the Second District found that the injury totally disabled the claimant from May 10 to December 1, 1979 and ordered payment accordingly. The Commissioner also found claimant had reached maximum improvement June 23, 1980 but had suffered a 5% permanent partial disability of the back for which he entered a specific award under Sec. 31-308.
Claimant had also sought payments for partial disability under 31-308 from December 11, 1979 until June 23, 1980, but the Commissioner did not award any as he found that claimant did not make sufficient effort to find work he was able to do during those months.
The Appellant-Respondent appealed the Commissioner's award of temporary total disability payments from May 11 to December 11, 1979 and the 26 week specific award beginning June 23, 1980. As the principal reasons for their appeal, they argue that Dr. Thomas T. Masterson, the Norwich orthopedic surgeon who testified on claimant's behalf based his on an inaccurate history. The history was inaccurate, respondent claims, because the claimant failed to reveal to the doctor that he was doing odd jobs during the period that the doctor found him totally disabled from work. One of the Jobs involved using a chain saw to saw wood and then loading or helping to load wood on claimant's truck and hauling the same firewood.
In cross-examining Dr. Masterson, appellant's counsel had the doctor state that had he known about the history of odd jobs, it might have changed his opinion. The doctor had concluded that claimant was disabled due to the subjective complaints of pain communicated to the doctor, Despite the doctor's admission that he might have changed his opinion had he had this other information, it does not appear that he actually did so. This left the matter for the commissioner to decide as the ultimate judge of the credibility of the witnesses and the reliability of their testimony. We cannot review conclusions of fact made by a commissioner which merely concern the weight of evidence and the credibility of witnesses, Engelhard v. Capewell Mfg. Co., 137 Conn. 32 (1950). Mund v. Farmers Cooperative; Inc., 139 Conn. 338 (1952). Adzima v. UAC/Norden Division, 177 Conn. 107 (1979). We cannot substitute our conclusions of fact as long as there was some evidence to support the commissioner's findings.
Therefore the decision of the Commissioner is affirmed,