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Ubaldo v. Cold Metal Products

CASE NO. 3223 CRB-6-95-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 25, 1997

GENNARO UBALDO

CLAIMANT-APPELLANT

v.

COLD METAL PRODUCTS

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by John Barbieri, Esq., 18 Cedar St., P. O. Box 1445, New Britain, CT 06050.

The respondents were represented by Debra S. Dee, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

This Petition for Review from the November 22, 1995 Finding of Facts and Dismissal of the Commissioner acting for the Sixth District was heard October 11, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the November 22, 1995 Finding of Facts and Dismissal of the Commissioner acting for the Sixth District. He argues on appeal that the commissioner erred by denying his Motion to Correct, by drawing legally inconsistent conclusions from the facts found, and by denying his motion to clarify and his motion for extension of time. We affirm the trial commissioner’s decision.

The commissioner found that the claimant was employed by Cold Metal Products on April 24, 1994, working the night shift. He was due at work at 11:00 that evening, and had to punch a time clock on his way in and out of the plant. Late employees also had to sign in at the guard shack at the gate. The claimant was about an hour late for work that night, and when he arrived, no one was in the guard shack. He had been warned about his unexplained absenteeism before, and was going to be suspended if he was absent from work again.

The claimant attempted to climb over the fence to get to work, but slipped and fell to the ground on the inside of the fence, which was company property. Although the claimant denied drinking any alcohol before going to work, hospital records showed that he drank beer at 10:00 that evening. The commissioner found that some of the claimant’s testimony was not credible, and ruled that he had failed to prove that his injury arose out of and in the course of his employment. The claimant has appealed that decision.

The claimant argues that the commissioner erred by denying his Motion to Clarify the Finding of Facts. This argument is specious. The claimant sought to clarify the commissioner’s statement that some of the claimant’s testimony was not credible, and that he did not meet his burden of proof. The commissioner denied that motion without comment. Admin. Reg. § 31-301-3 states that a commissioner need include only “the ultimate relevant and material facts essential to the case at hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from evidence or merely evidential facts, nor the reasons for his conclusions.” The claimant seeks exactly that here, however, by requesting that the commissioner explain which parts of his testimony were not credible. He was not required to do that. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 73, 1859 CRB-5-93-9 (May 12, 1995). Furthermore, the last six findings enumerate two instances in which the claimant’s testimony was contradicted by other facts.1

Moreover, even if the commissioner did articulate his reasoning, he would still be the sole evaluator of the credibility of witnesses. Id., 70. There is little this board could do on appeal to reassess his finding that the claimant’s testimony lacked believability. In fact, it is the claimant’s burden to prove to the satisfaction of the commissioner that a compensable injury has occurred. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). From the findings, it is clear that the commissioner had a suspicion that alcohol may have played a part in the claimant’s injury; also, one would wonder whether the claimant’s actions in climbing over the fence did not constitute willful misconduct, despite the arguments in the claimant’s brief. See § 31-284 C.G.S. We perceive no error in his denial of this claim for compensation.

The trial commissioner’s decision is affirmed.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 As for the denial of the Motion for Extension of Time to File a Motion to Correct, we can perceive no cogent ground for argument that this was error. No extension of time was granted because none was necessary; the motion to clarify was ruled on immediately, and a Motion to Correct could now be filed. BACK TO TEXT

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