State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Swaggerty v. Mattie’s Service Station

CASE NO. 3378 CRB-6-96-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 3, 1998

MARK SWAGGERTY

CLAIMANT-APPELLANT

v.

MATTIE’S SERVICE STATION

EMPLOYER

and

WAUSAU INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Alan K. Reisner, Esq., Butler, Norris & Gold, 254 Prospect Ave., Hartford, CT 06106-2041.

The respondents were represented by Robert S. Cullen, Esq., McGann, Bartlett, & Brown, 281 Hartford Tpke., Vernon, CT 06066.

This Petition for Review from the July 5, 1996 Finding and Dismissal of the Commissioner acting for the Sixth District was heard April 4, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 5, 1996 Finding and Dismissal of the Commissioner acting for the Sixth District. He argues on appeal that the commissioner erred by concluding that his injuries resulted from non-compensable horseplay. We affirm the trial commissioner’s decision.

The claimant was employed by Matti’s Service Station in West Hartford on October 26, 1994, as a cashier/attendant. He had worked there for several years, although he was scheduled to be laid off the next day. He alleges that he suffered injuries to his head, neck, back, right shoulder and knee when a customer attacked him on the date in question, and seeks compensation for those injuries.

The claimant contends that he was standing outside facing the service station at about 11:30 a.m. when he felt an arm wrap around his neck and was slammed to the ground by Bruce Hutchinson, who banged his head against the ground seven times and called him racist names. Hutchinson testified that when he pulled into the service station, the claimant punched him in the side of the head and broke his glasses after he refused to give the claimant a dollar. The claimant denies that he punched Hutchinson first.

The station manager testified that the claimant told him he had punched Hutchinson the same day the incident occurred. He also said that he had seen the two engage in horseplay prior to that date. A mechanic who worked at the service station testified that he did not witness the altercation itself, but saw the claimant and Hutchinson get up from the ground and shake hands. He also said that he saw a scratch on Hutchinson’s head, and noticed that his glasses were broken. The owner of the service station testified that Hutchinson showed him a bruise on his cheek and the broken glasses the day after the incident occurred.

The claimant denied that there was a conversation prior to the altercation, and that Hutchinson drove away immediately afterward. The claimant called the police later that day, and went to the emergency room of Mt. Sinai Hospital. Hutchinson, who was already on probation for a previous altercation, was charged with reckless endangerment and ridicule based upon race as a result of his fight with the claimant. He pleaded no contest to the criminal charges, and was ordered by the Superior Court to pay $1000 to a charity and $5000 to the claimant as restitution.

Based on these facts, the commissioner found that the claimant had previously engaged in horseplay with Hutchinson. Although he noted that the claimant suffered injuries as a result of this particular incident, and that Hutchinson had pleaded nolo contendere to the charges filed against him, he found that the altercation was personal and not connected to the claimant’s employment. Instead, it was the result of horseplay that went too far. He dismissed the claimant’s request for benefits, from which judgment the claimant has appealed to this board.

The claimant, who filed a Motion to Correct that was denied en toto by the trier, argues that the commissioner should have included findings describing his assailant’s past criminal convictions for larceny and burglary, and his testimony that he had an 18-year history of violent crimes. The claimant cites State v. Miranda, 176 Conn. 107 (1978), in support of this argument. There, our Supreme Court held that a defendant on trial for homicide should have been allowed to introduce evidence of the victim’s record of convictions for violent crimes in conjunction with his testimony that he was acting in self-defense when he shot the victim.

Although the character of the deceased is ordinarily irrelevant to the accused’s guilt or innocence in a homicide trial, the accused had long been allowed to introduce evidence of violent, turbulent or dangerous character to show that he was aware of such character and that he had reason to fear serious harm. The Miranda court extended that exception to also allow evidence of a victim’s violent character to show that he was the aggressor in his encounter with the defendant, regardless of the extent of the accused’s knowledge of such character. Id., 111. The Court then discussed the nature of the evidence that might be allowed, and ruled that prior convictions could be used to establish that character along with reputation and opinion testimony. Id., 114. The Court stressed that this exception was a narrow one, however, and stated that only specific convictions for violent acts that bear some similarity in their nature to the facts of the alleged aggression should be admitted into evidence by the trial court. See also State v. Smith, 222 Conn. 1, 17-19 (1992).

We do not believe that Miranda required the trial commissioner to make findings as to Hutchinson’s prior record of convictions. First, this case is not a homicide case, and the claimant has not made it clear that this exception applies to any other crime involving a violent act. The use of prior convictions to prove that an individual had a propensity to commit a crime carries with it a certain amount of risk of unfair prejudice to that individual, and is not always probative evidence of what occurred in another situation. We are not convinced that this exception must be applied broadly.

Second, § 31-298 C.G.S. specifically states that a trier is not bound by the ordinary common-law or statutory rules of evidence, but instead shall make inquiry in a manner best calculated to ascertain the substantial rights of the parties and carry out the intent of the Workers’ Compensation Act. Within these powers lies a broad discretion to determine the relevancy and remoteness of evidence. Mulroy v. Becton Dickinson, 15 Conn. Workers’ Comp. Rev. Op. 455, 458, 2295 CRB-8-95-2 (Sept. 6, 1996). Even though Hutchinson testified as to his past record, the trier was not required to find this evidence relevant in this case. We must remember that the trial commissioner, and not this board, is responsible for finding the facts and drawing inferences from the evidence to reach his decision. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). We may not second-guess his decisions as to which evidence and testimony he finds credible, and which information he decides to disregard.

The fact is, three witnesses testified to circumstances supporting the testimony of Hutchinson regarding the claimant’s initiation of their altercation on October 26, 1994. Hutchinson himself testified that he and the claimant had a history of calling each other names and horsing around, and that he “had about had it up to here” with the claimant after the claimant punched him in the face, so he fought back. See November 8, 1995 Transcript, p. 56-57. Hutchinson also testified that he pleaded no contest to the charges arising from that incident because he did not want to risk going to jail for violating his probation, and he believed that paying the fines would get the matter over with. Id., 60-61. Jamal Aziz, the station manager, and Richard Weinle, a mechanic, both testified to facts supporting a history of horseplay between the claimant and Hutchinson and the description of the events that Hutchinson gave. February 5, 1996 Transcript, p. 5, 23.

The commissioner was entitled to credit this testimony, and to accept the version of the facts supported by these witnesses. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb, supra. As the determination of whether an injury arose out of and in the course of a claimant’s employment is a factual question for the trier, see Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988), we cannot disturb that decision if it is supported by evidence.

Here, there is evidence demonstrating that the incident in question was the result of horseplay rather than an occurrence that was directly related to the claimant’s duties as an employee of the service station. There is no indication that the claimant’s employer tolerated or encouraged such conduct at the workplace. See Shedlock v. Cudahy Packing Co., 134 Conn. 672, 676-67 (1934); see also Simmons v. Bonhotel, 13 Conn. Workers’ Comp. Rev. Op. 234, 235-36, 1778 CRB-5-93-7 (April 13, 1995), affirmed, 40 Conn. App. 278 (1996). The trial commissioner was not required to conclude that the claimant’s injuries were compensable simply based on Hutchinson’s past criminal record or his plea of nolo contendere to the criminal charges relating to the incident underlying this case. He was entitled to make his own decision as to which version of the facts was more accurate. We must now uphold that decision.

The trial commissioner’s dismissal of the instant claim is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

Workers’ Compensation Commission

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