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Glenn v. Glenn Fence Company, Inc.

CASE NO. 2132 CRB-1-94-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 21, 1996

HERBERT K. GLENN

CLAIMANT-APPELLANT

v.

GLENN FENCE COMPANY, INC.

EMPLOYER

and

PEERLESS INSURANCE CO.

INSURER

and

MARYLAND CASUALTY CO.

INSURER

and

HANOVER INSURANCE CO.

INSURER

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by John L. Laudati, Esq., Murphy, Laudati & Kiel, P.C., The Exchange--Suite 360, 270 Farmington Ave., Farmington, CT 06032.

The employer and Peerless Insurance Co. were represented by Jean D. Molloy, Esq., Montstream & May, P. O. Box 1087, Glastonbury, CT 06033.

The employer and Maryland Casualty Co. were represented by Margaret E. Corrigan, Esq. and Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

Additionally, notice of the CRB Opinion is being sent to Frederick L. Monahan, Jr., Esq., Shields & Monahan, 35 Thorpe Avenue, Suite 104, Wallingford, CT 06492

Hanover Insurance Co. was represented by Christine C. Murphy, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

The Second Injury Fund was represented at trial by Taka Iwashita, Esq., A.A.G., 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120. The Fund was not represented at oral argument.

This Petition for Review from the August 22, 1994 Finding and Dismissal of the Commissioner acting for the First District was heard May 19, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D’Oyen and Angelo L. dos Santos.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 22, 1994 Finding and Dismissal of the Commissioner acting for the First District.1 At the proceedings below, the claimant alleged that he injured his back in the course of his employment on August 3, 1991, later attempting to amend that date to July 27, 1991. The commissioner noted that there was confusion surrounding the date of injury in both the doctors’ reports and the claimant’s written statement.

The claimant also alleged that he injured both his back and right knee on February 11, 1993. The commissioner noted that the First Report of Injury dated March 9, 1993 indicated no disability in connection with that injury. Furthermore, there were no witnesses produced to verify that either injury had actually occurred. The commissioner concluded that the claimant had not satisfied his burden of proof with respect to either injury. The claimant appealed that ruling to this board.

Subsequently, we denied the claimant’s motion to submit as additional evidence the testimony of Brian Eaton, an alleged witness to his 1991 injury, and the testimony of two other witnesses who would allegedly have testified that, contrary to the findings, the claimant did not intend to sell his house and move out of state in February 1993. Although these witnesses were out-of-state at the time of the formal hearings, the claimant made no showing that they could not have been deposed before the hearings concluded. Consequently, the claimant did not have a good reason for their absence. See Admin. Reg. § 31-301-9; Glenn v. Glenn Fence Co., 2132 CRB-1-94-8 (April 10, 1995).

The claimant argues here that the trial commissioner erroneously concluded that he did not sustain his burden of proof as to the two injuries. He further argues that the commissioner improperly drew a negative inference from the absence of a witness to the 1991 injury, and that he erroneously failed to grant the claimant’s Motion to Correct.

The trial commissioner is charged with determining the credibility of witnesses and the reliability of evidence. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 71, 1859 CRB-5-93-9 (May 12, 1995), citing Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). Questions such as whether an injury occurred and whether it arose out of and in the course of a claimant’s employment are factual issues to be decided by the trial commissioner, and his or her findings must stand if there is evidence to support them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra. Likewise, the conclusions drawn by the commissioner from those facts must stand unless they result from the law being applied incorrectly to the facts, or from an illegal or unreasonable inference drawn from them. Fair, supra.

With respect to the alleged injury of August 3, 1991, the trial commissioner found that the First Report of Injury alleged a July 27, 1991 injury, while one medical report mentioned an August 27, 1991 injury, and another alleged a July 27, 1991 injury. It was noted in the decision that the claimant requested an informal hearing to correct the date of injury. The commissioner also noted that “the claimant did not produce any witnesses at trial who were actual witnesses to the injury.” He found that the claimant’s testimony was unreliable given these factors, and concluded that the claimant had not met his burden of proof.

We cannot say that it was error for the commissioner to be impressed by these details in evaluating the credibility of the claimant’s testimony. The claimant had suffered prior back injuries, and did not present clear proof other than his own testimony that his back injury occurred in the manner alleged. Confusion as to the date of the alleged injury could have caused the commissioner to question the overall accuracy of the claimant’s testimony.

As for the commissioner’s observation that the claimant produced no witnesses to verify his story, we cannot say that the commissioner drew an improper adverse inference from the claimant’s failure to call Brian Eaton as witness. In Secondino v. New Haven Gas Co., 147 Conn. 672 (1960), and Moccia v. Ecker, 7 Conn. Workers’ Comp. Rev. Op. 10, 620 CRD-7-87 (June 22, 1989), the discussions of the adverse inference rule concerned cases in which the failure to produce a particular witness was held against a claimant. In this case, the commissioner did not find against the claimant for his failure to produce a particular witness; rather, he noted that no witnesses to the injury were produced to help the claimant meet his burden of proof in the first place. The distinction is important, and renders the cases cited by the claimant inapposite.

With respect to the alleged injury of February 11, 1993, the claimant was also required to meet his burden of proof. The commissioner found that the claimant’s First Report of Injury did not indicate disability, and that he had plans to sell his house and move out-of-state at the time of the injury. The claimant now argues that he adequately demonstrated his disability through medical reports, and that the trial commissioner improperly refused to correct his finding that the claimant planned to move out of state in light of his acknowledgment that the claimant did not own a house in Connecticut.

We are again faced with a question of credibility here. Although not binding as to whether or not the claimant was actually disabled, the First Report of Injury does indicate “no down time” in response to the inquiry as to the probable length of disability. The trial commissioner was entitled to take note of this in deciding whether the claimant’s allegation of a compensable injury was believable or not. Although the medical reports support the existence of a disability, the only evidence that such disability was caused by the alleged injury is the claimant’s own testimony. The commissioner chose not to rely on it. We cannot say that it was erroneous for the commissioner to rule that the claimant had not met his burden of proof. Also, the arguments surrounding the testimony regarding the sale of the claimant’s house are irrelevant with respect to the outcome of this case, and will not be addressed any further. See Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Roberta S. Tracy concur.

1 At oral argument, the parties waived any objection to Chairman Frankl’s presence on the CRB panel. BACK TO TEXT

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