Carlozzi v. State of Connecticut Dept. of Mental Retardation Southbury Training School

CASE NO. 5072 CRB-5-06-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 20, 2007

FLORENCE CARLOZZI

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT DEPT. OF MENTAL RETARDATION SOUTHBURY TRAINING SCHOOL

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS OF NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented Laura Ondrush, Esq., Dodd, Lessack, Dalton, & Dodd LLC, Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondent was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the March 15, 2006 Finding and Dismissal of the Commissioner acting for the Fifth District was heard September 22, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant filed an appeal from the March 15, 2006 Finding and Dismissal of the Commissioner acting for the Fifth District. The pertinent facts are as follows. On September 15, 1986 the claimant sustained a compensable injury to her neck. On January 10, 1989 the claimant underwent an anterior discectomy and fusion at C6-7. This surgery was performed by Dr. Richard A. Matza and Dr. Jarob M. Mushaweh. Following this surgery the claimant was unable to return to work for the respondent but did secure another employment position.

In September 1997 the claimant underwent discectomy and fusion at the C4-5 level. On February 26, 1998 while employed with the Meriden-Wallingford Society for the Handicapped, Inc. the claimant fell and sustained a compensable injury to her neck. The parties executed a Voluntary Agreement in which the claimant was provided with a 41.5 % permanent partial disability of the neck as a result of the September 15, 1986 injury. On November 3, 1999 a Stipulation for Full and Final Settlement was approved with respect to the February 26, 1998 injury. The Stipulation provided the claimant with an award of $3,000.

In 2003, the claimant again saw her treating physician, Dr. Richard Matza. In November 2003 Dr. Matza diagnosed the claimant with “a cervical strain and spondylosis post decompression and fusion.” Findings, ¶ 11. Dr. Matza opined claimant was totally disabled from March 31, 2003 through February 5, 2005 and that the claimant’s 1986 injury was a substantial factor in causing her disability.

In proceedings before the trial commissioner the claimant sought temporary total benefits and in the alternative temporary partial benefits pursuant to § 31-308a. The trial commissioner awarded neither and this appeal ensued. In her appeal the claimant presents the following issue for our review, whether the trial commissioner erred in failing to award benefits pursuant to § 31-308a.1

In pursuing a claim for benefits the burden of proof rests on the claimant. The conclusions drawn by the trial commissioner and the supporting factual findings will not be disturbed unless they are contrary to law, without evidentiary support or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Further, the weight and credibility assigned to the evidence is a matter to be decided by the trial commissioner. Subsumed within the trier’s power to assess the weight and credibility to be accorded to the evidence is the trier’s right to reject all or portions of the evidence proffered.

“It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. . . . The trier may accept or reject, in whole or in part, the testimony of an expert.” (Citation omitted.) Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195, 737 A.2d 993, cert. denied, 251 Conn. 929, 742 A.2d 364 (1999). Chesler v. Derby, 96 Conn. App. 207 (2006).

The trial commissioner’s findings reflect that Dr. Matza testified by deposition on February 17, 2005 and opined that the claimant was totally disabled from March 31, 2003 through February 5, 2005 and that the 1986 injury was a substantial factor in causing her disability. Dr. Matza identified the reason for claimant’s disability was “her neck pain, headaches and occasional right arm pain.” Findings, ¶¶ 17-18. However, in a letter dated June 25, 2001, Dr. Matza wrote that 15% of claimant’s headaches were attributable to a 1985 motor vehicle accident and 85% to her 1998 injury.

Additionally, the respondent’s examiner, Dr. Patrick R. Duffy, reviewed the claimant’s medical records and concurred with Dr. Matza’s June 25, 2001 assessment relating the claimant’s headaches to the 1985 motor vehicle accident and the 1998 injury. Therefore, given Dr. Matza’s conflicting opinions and the respondent’s examiner’s opinion, we cannot conclude that the weight and credibility the trial commissioner assigned to the evidence was an abuse of his discretion.

We therefore affirm March 15, 2006 Finding and Dismissal of the Commissioner acting for the Fifth District.

Commissioners Nancy E. Salerno and Stephen B. Delaney concur.

1 We note the claimant has abandoned her claim that the trial commissioner erred in failing to find the claimant totally disabled. BACK TO TEXT