Opinion
CASE NO. 1906 CRB-8-93-11
SEPTEMBER 22, 1995
The claimant was represented by F. Woodward Lewis Jr., P.C.
The respondents were represented by David W. Schoolcraft, Esq., Trowbridge, Schoolcraft Basine, P.C.
This Petition for Review from the November 3, 1993 Finding and Dismissal of the Commissioner acting for the Eighth District was heard March 10, 1995 before a Compensation Review Board panel consisting of Commissioners George Waldron, Roberta Smith D'Oyen and Amado J. Vargas.
OPINION
The claimant has petitioned for review from the Finding and Dismissal of the Commissioner acting for the Eighth District. In that decision, the commissioner ruled that the claimant failed to meet her burden of proof that she sustained an injury which arose out of and in the course of her employment. The commissioner concluded that the claimant's tendinitis of the right shoulder was not causally related to her use of a glass pulling machine at work. In support of her appeal, the claimant contends that (1) the commissioner improperly compared the claimant's live testimony to the testimony in the written record; (2) that the video entered into evidence by the respondents showing the use of the glass puller was misleading; (3) that the commissioner improperly admitted testimony regarding a grievance which the claimant had filed; and (4) the commissioner improperly denied the claimant's motion to correct. We find no error, and affirm the trial commissioner.
Initially, formal hearings were held by Commissioner Kolinsky on April 22, 1992 and June 2, 1992. Commissioner Kolinsky subsequently retired prior to rendering a written decision. The parties agreed to have Commissioner Brouillet render a decision based upon the record. Commissioner Brouillet, prior to issuing a written decision, requested that the parties appear for a formal hearing limited to the issue of the claimant's arm position when she operated the glass pulling machine. During that formal hearing on October 28, 1993, neither party raised any objections to the commissioner hearing further testimony from the claimant on this issue.
The commissioner concluded that the claimant's testimony regarding the manner in which she operated a glass pulling machine lacked both consistency and credibility. The claimant contends that it was unreasonable for the commissioner to compare the claimant's live testimony with that of the written record containing testimony of other witnesses. We disagree. It is the commissioner, as trier of fact, "who determines with finality the credibility of the witnesses and the weight to be accorded their testimony." Miller v. TVCCA, 12 Conn. Workers' Comp. Rev. Op. 348, 349, 1675 CRB-2-93-3 (July 29, 1994). Commissioners often must compare live testimony with that of written testimony, such as depositions. "We may not disturb the commissioner's conclusions which are dependent on the weight and credibility accorded the evidence." Id. (citations omitted).
Depositions of physicians are generally admissible in workers' compensation proceedings. See Maylott v. Williams Engineering, 11 Conn. Workers' Comp. Rev. Op. 320, 1353 CRD-6-91-12 (December 23, 1993); see also § 52-149a C.G.S.
In further support of her appeal, the claimant contends that the video introduced by the respondent, which showed an individual using the glass puller, was misleading because the machine was not in the same position as when the claimant worked on it, and because the claimant weighed more and had a shorter torso than the person on the video. We note that the claimant never objected to the admission of the video during the formal hearings. Therefore, because the claimant failed to make a timely objection to the admission of the video film at the formal hearing, this tribunal need not consider the matter on appeal. See Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974), see also State v. Lizotte, 200 Conn. 734, 742A (1986). Nevertheless, we have considered the issue and find no error.
Workers' compensation commissioners are not bound by common law or statutory rules of evidence, "but shall make inquiry, through oral testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter." General Statutes § 31-298 C.G.S. We find no error in the commissioner's admission of the video. It was within the discretion of the commissioner to admit the video and to weigh its evidentiary value. Furthermore, we find no basis for the claimant's contention that she was "not permitted to testify as to the difference between the location of the glass puller at the time she used it and its location at the time of the video taping." (Claimant's Brief at p. 5). To the contrary, the claimant was never denied that opportunity, and did in fact testify on that issue. (10/28/93 Transcript at p. 5, 4/21/92 Transcript at pp. 73-74).
The claimant, pursuant to the "best evidence rule," objects to the admission of testimony regarding the claimant's grievance filed against the employer without the admission of a copy of that grievance. "Where the contents of a document are to be proved, the best evidence rule requires that the original document be offered in evidence unless such production is excused." Tait and LaPlante, Handbook of Connecticut Evidence, 2d. Edition, p. 299. In the instant case, the claimant specifically admitted that she had filed the grievance at issue, and testified regarding the reason for the grievance. (Claimant's Brief at p. 6; and 4/21/92 Transcript at p. 84). Thus, the contents of the grievance was not at issue, and therefore the best evidence rule did not apply.
Finally, the claimant contends that the commissioner erred in failing to grant her motion to correct. The claimant's contentions essentially dispute the credibility determinations made by the trial commissioner, which we will not disturb. The commissioner had the discretion to make a credibility determination based upon the record of the claimant' testimony regarding the placement and use of the machine and based upon the claimant's live demonstration on October 28, 1993. We find that the commissioner's findings of fact are supported by the evidence, and we thus find no error in the commissioner's denial of the motion to correct. See Grady v. St. Mary's Hospital, 179 Conn. 662, 669 (1980).
Whether the trier erred in finding that the claimant's injury arose out of and in the course of her employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988); Northrop v. Boehringer Ingelheim, 9 Conn. Workers' Comp. Rev. Op. 228, 1032 CRD-7-90-6 (Oct. 30, 1991). In the instant case, the trial commissioner concluded that the claimant's tendinitis was not causally related to her use of the equipment at her workplace. We find sufficient evidence in the record to support the commissioner's conclusion.
Accordingly, the trial commissioner's decision is affirmed.
Commissioners Roberta Smith D'Oyen and Amado J. Vargas concur.