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Maio v. L.G. DeFelice, Inc.

CASE NO. 1734 CRB-5-93-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 22, 1995

ANGELO MAIO

CLAIMANT-APPELLANT

v.

L. G. DEFELICE, INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se at oral argument. He was represented at the trial level by Michael Tierney, Esq., One Corporate Drive, Suite 612, Shelton, CT 06484.

The respondents were represented by James J. Giulietti, Esq., Parrett, Porto, Parese, Colwell & Giulietti, P.C., 357 Whitney Avenue, New Haven, CT 06511.

This Petition for Review from the May 13, 1993 Finding and Award of Dismissal of the Commissioner acting for the Fifth District was heard May 20, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant, Angelo Maio, has petitioned for review from the May 13, 1993 Finding and Dismissal of the commissioner for the Fifth District. He essentially argues on appeal that the commissioner improperly credited the testimony of a fellow employee in concluding that the claimant had not met his burden of proof as to the occurrence of a compensable work-related injury.1 We affirm the trial commissioner’s decision.

The claimant was employed by the respondent L.G. Defelice, Inc., as a truck driver on October 7, 1991, the date of the alleged injury. He claims that he injured his knee and back when he slipped and fell while descending from the top of one of his employer’s trucks after checking the load. The claimant testified that, after he fell, his foreman asked him if he was all right and that two other employees assisted him. He stated that he then drove back to the employer’s premises, reported his injury to a dispatcher, and filled out an accident report. The claimant was later diagnosed with a lumbar and a left knee strain/sprain by his treating physician.

Jack Maceira, the foreman who loaded the claimant’s truck on the alleged date of injury, testified that the claimant did not climb onto the back of the truck and that he did not see the claimant fall or lying on the ground. He stated that when the claimant exited the truck after driving it to the loading site he merely stood by and watched it being loaded, as was his custom. He further testified that it was his responsibility to prepare an accident report in the event of an injury, and that he was not made aware of the claimant’s alleged injury until two days after it occurred. The commissioner noted this testimony and found that the claimant had failed to meet his burden of proof that he sustained a work-related injury on October 7, 1991.

The claimant argues that the commissioner improperly failed to consider the facts that the respondent employer had “whited out” the signature of Maceira on a duplicate copy of the accident report sent to the claimant in an alleged attempt to conceal the existence of a witness to the accident, and that Maceira’s testimony was inconsistent and should not have been relied upon. As to the first claim, we note that the claimant’s original copy of the accident report did include Maceira’s name, and that the claimant’s attorney was present on his behalf at the deposition of Jack Maceira. The claimant was therefore not deprived of the opportunity to prepare for or cross-examine that witness. Any dissatisfaction the claimant might have with his attorney’s performance in performing that cross-examination is not material to our review of the commissioner’s decision.

The claimant further argues that Maceira’s testimony was inconsistent and unreliable, and should not have been believed by the commissioner. On review of the commissioner’s findings, this Board does not retry the facts nor hear evidence. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). We cannot review the conclusions of the commissioner when they depend upon the weight of the evidence and the credibility of witnesses. Id.; Cholewinski v. Brake Systems, Inc., 6 Conn. Workers’ Comp. Rev. Op. 105, 601 CRD-4-87 (Jan. 27, 1989). Here, it was the commissioner’s duty to decide whether the testimony of Maceira was believable and trustworthy. He chose to rely on that testimony. It is not within the scope of our review to question that decision, as the commissioner was in a better position than this Board to determine who was telling the truth.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 The claimant, who is proceeding pro se on appeal, raised claims in his Reasons of Appeal that the commissioner improperly granted a continuance to the respondents and that the commissioner improperly failed to consider an offer of settlement made by the respondents. As these arguments were not briefed or raised at oral argument by the claimant, they are deemed abandoned. Lee v. Bridgeport Housing Authority, 12 Conn. Workers’ Comp. Rev. Op. 58, 61, 1416 CRB-4-92-5 (Jan. 27, 1994); Richardson v. H.B. Sanson, Inc., 6 Conn. Workers’ Comp. Rev. Op. 107, 108 n.1, 590 CRD-1-87 (Feb. 23, 1989). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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