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Horne v. Phoenix Soil, Inc.

CASE NO. 3824 CRB-05-98-05

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 12, 1999

WILLIAM HORNE

CLAIMANT-APPELLEE

v.

PHOENIX SOIL, INC.

EMPLOYER

and

HARTFORD ITT INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Gary Broder, Esq., 89 Roseland Avenue, Waterbury, CT 06710.

The respondents were represented by Edward M. Henfey, Esq., 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

This Petition for Review from the May 19, 1998 Finding and Award of the Commissioner acting for the Fifth District was heard January 8, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the May 19, 1998 Finding and Award of the Commissioner acting for the Fifth District. They contend on appeal that the trier erred by finding that the claimant suffered a compensable injury. We affirm the trial commissioner’s decision.

The trier of fact found that the claimant was employed by the respondent Phoenix Soil, Inc., on April 20, 1997. His primary job was to keep clean the floor area around the soil purification machines, but he had also been given other duties such as adjusting belts, maintaining fittings, and replacing magnets and hoses. He was earning a gross wage of $481.11 per week, which translates into a base compensation rate of $286.53. Findings, ¶ 3. The claimant, whom the trier found to be a conscientious and diligent employee, testified that his supervisor told him to use whatever means necessary to keep the work area clean around the “pug mill” machine. He stated that he observed mud underneath the machine on April 20, 1997, which was the residue of water that was leaking from the machine. Other employees’ attempts to repair the leak had been ineffective.

In the past, Phoenix Soil had utilized a 55-gallon drum as a catch basin to collect dripping water. The claimant asked his supervisor for permission to use an acetylene torch to carve a trough out of a similar drum as a temporary remedy for this leak. The trier found that the claimant had previously used an acetylene torch. On this date, while the claimant was using the torch to carve the drum, an explosion occurred. The claimant was alone at the time. The respondents argued that the claimant’s injury was not compensable because he was cutting apart the drum in order to construct a grill for a pig roast, but the trial commissioner found that the explosion and resulting injuries arose out of and in the course of the claimant’s employment, and awarded him “all benefits for said injury under the Workers’ Compensation Act.” The respondents have appealed.

The respondents argue that the claimant did not meet his burden of proof, and that the trier’s decision must be reversed. They direct our attention to testimony in the record from co-workers who overheard the claimant saying that he had been constructing a grill when he was injured, and assert that it was not the claimant’s job to fabricate items for Phoenix Soil. Effectively, the respondents contend that, based on this evidence, it was legally erroneous for the trial commissioner to credit the testimony of the claimant over the testimony of these other three witnesses. This argument does not set forth a valid ground for appellate reversal of the trier’s decision.

Whether or not the claimant was injured in the course of his employment is a question of fact. Hanson v. Transportation General, Inc., 245 Conn. 613, 623 (1998). In a workers’ compensation matter, factual disputes are solely determined by the trial commissioner. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Here, the conduct and intentions of the parties surrounding the acetylene torch accident was inferable only through the testimony of various employees. The credibility of the witnesses who testify before her is for the commissioner to decide, and this board may not pronounce such decisions unacceptable on review. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

In this case, no one suggests that the claimant did not testify to the version of the facts adopted by the commissioner. Rather, the respondents imply that the claimant prevaricated his story, based on several other witnesses who testified somewhat differently. Surely, however, the appellants are aware that such an assertion provides this board with no basis to disturb the commissioner’s decision. No matter how strongly the respondents believe that their version of the facts is the correct one, an appellate body does not reevaluate the fact-finding part of a case. The trial commissioner has already decided that the claimant was telling the truth. We cannot change that on appeal, nor would it be our place to try. Fair, supra Webb, supra.

As the respondents have offered no other grounds for appeal, we hereby affirm the trial commissioner’s decision. Insofar as the respondents have failed to pay benefits due pending appeal, interest is awarded pursuant to § 31-301c(b).

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: April 8, 2005

Page URL: http://wcc.state.ct.us/crb/1999/3824crb.htm

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