Opinion
CASE NO. 3048 CRB-8-95-3
NOVEMBER 27, 1996
The claimant was represented by John D'Elia, Esq., Kennedy Johnson.
The employer was represented by Lucas D. Strunk, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the March 13, 1995 Finding and Award of the Commissioner acting for the Eighth District was heard March 15, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.
OPINION
The respondent employer and its insurer ("respondents") have petitioned for review from the March 13, 1995 Finding and Award of the Commissioner for the Eighth District. In that decision, the trial commissioner concluded that the claimant sustained a compensable burn injury to his leg on July 21, 1991. In addition, the trial commissioner concluded that the burn "may not have reached maximum medical improvement" and thus declined to make an award for scarring at that time. In support of their appeal, the respondents reiterate the arguments made to the trial commissioner that the claimant's job duties could not have caused the claimant's injury. In a cross-appeal, the claimant contends that the trial commissioner improperly denied his request for a scarring award.
The trial commissioner found the following relevant facts. On July 21, 1991 the claimant was working for the employer as a parts cleaner. His job duties required him to place trays of turbine blades in a process known as "dunk and drain" which consisted of a nitric acid bath followed by four water rinses and one alkaline rinse. The claimant testified that while he was carrying a basket containing wire trays which each held 26 engine blades, he lifted one of the wire trays and rested it on his left leg when one or two quarts of liquid spilled out of the tray onto his left pant leg. Shortly thereafter, he left work and while he was driving home he felt a stinging sensation on his left leg. When he reached home, he took a bath and noticed that his left leg turned a little grey, and he felt stinging. The claimant's son applied an ointment to the area and wrapped it in a dressing. The following morning, when the claimant reported to work he went to the employer's first aide station. The employer's physician, Dr. Rosenbaum, found extensive first and second degree burns on the claimant's left leg and called the Yale Burn Unit to arrange for the claimant to be seen there. On July 23, 1991 the claimant was treated by Dr. Cuono, Director of the Burn Unit at the Yale New Haven Hospital, who found some of the burns to be third degree burns. Subsequently, when the claimant did not respond to conservative treatment, he was admitted to Yale New Haven Hospital for a skin graft on August 15, 1991.
The respondents contend that the trial commissioner's conclusion that the claimant's injury was caused by his job duties is not supported by the record that the claimant's testimony regarding his injury was contradictory, and thus not credible; that the respondents proved through a replication of the process that the job duties could not have caused the claimant's injury; and that the trial commissioner improperly placed the burden of proof on the respondents to disprove the claimant's claim. Whether an injury arose out of and in the course of the employment requires a factual determination.McDonough v. Connecticut Bank Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the commissioner as the trier of fact. We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People's Savings Bank, 207 Conn. 535 (1988).
The trial commissioner noted that the person who performed the tests designed to replicate the claimant's job duties sustained burns on his skin. (Finding No. 36; TR 4/5193 at p. 97-98).
In the instant case, the trial commissioner determined that the claimant met his burden of proof that his injury was caused by his duties at work. Contrary to the respondents' contentions, the trial commissioner did not shift the burden of proof to the respondents to prove that the claimant's injury did not occur as the claimant testified. Rather, the trial commissioner found that causation was supported by the claimant's testimony and by the medical testimony presented. (See Findings No. 36). The trial commissioner found the claimant's testimony regarding his injury to be credible.
Moreover, Dr. Cuono, the Director of the Burn Unit at the Yale New Haven Hospital, who treated the claimant on July 23, 1991, testified that in his opinion the burn on the claimant's leg was caused by a nitric acid burn at work. Furthermore, Dr. Cuono testified that a relatively diluted exposure to nitric acid would have the same effect as a more concentrated exposure if it remained on the skin for a longer period of time. Dr. Cuono's opinions were based upon reasonable medical probability. (Deposition at pp. 3233). We conclude that the record fully supports the trial commissioner's determination that the claimant's injury was caused by his job duties on July 21, 1991. Where, as here, the commissioner's determination is based upon the weight and credibility that he has accorded the evidence, we will not disturb such a determination. Dickey v. Harris Graphics, 12 Conn. Workers' Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994). It was within the province of the commissioner to resolve inconsistencies or contradictions in the evidence. Miller v. Kirshner, 225 Conn. 185, 198-99 (1993), Fair, supra, at 538-42.
We will now address the claimant's cross-appeal, in which the claimant contends that the trial commissioner was required to issue a permanency award for the burn on the claimant's leg. The trial commissioner found that the claimant's injury "may not have reached maximum medical improvement and that the respondents are entitled to have (the) claimant undergo a course of treatment involving the medication Psoralen to determine whether or not the scar is permanent and significant in nature." This determination is supported by the testimony of Dr. Kaiser, who conducted an independent medical examination and concluded that the claimant's skin condition was not permanent but could be improved with the application of Psoralen medication. (see TR 12/10/93 at pp. 8-101). Accordingly, we find no error in the trial commissioner's decision to leave the matter open in order for the claimant to undergo the Psoralen treatment before requesting a permanency award.
The trial commissioner's decision is affirmed.
Commissioners George Waldron and Robin L. Wilson concur.