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Gagliardi v. Raimondo Maintenance, LLC

CASE NO. 4012 CRB-01-99-04

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 20, 2000

VICTOR GAGLIARDI

CLAIMANT-APPELLEE

v.

RAIMONDO MAINTENANCE, LLC.

EMPLOYER

and

PEERLESS INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by David Mester, Esq., Mester, Grabow & Miller, LLC, 10 Grand Street, Hartford, CT 06106.

The respondents were represented by Dominick Statile, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the March 23, 1999 Finding and Award of the Commissioner acting for the First District was heard January 21, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the March 23, 1999 Finding and Award of the Commissioner acting for the First District. In that decision the trial commissioner found that the claimant sustained a compensable injury to his right shoulder on November 18, 1997 while unloading a leaf blower from the back of a truck. In support of their appeal, the respondents contend that the trial commissioner’s determination that the claimant sustained an injury on that date is not supported by the evidence in the record. In addition, the respondents argue that the trial commissioner’s award of temporary total disability benefits is not supported by any medical evidence.

We will first address the respondents’ contention that the record does not support the trial commissioner’s determination that the claimant sustained an injury while at work on November 18, 1997. Specifically, the respondents argue that the claimant’s testimony was inconsistent and contradictory, and that the evidence presented by the employer demonstrated that the injury could not have occurred in the manner described by the claimant. In the instant case, the trial commissioner specifically addressed the issue of credibility, and found the claimant’s testimony to be more credible than the testimony presented by the respondent employer. The trial commissioner “is the sole arbiter of the weight of the evidence and the credibility of witnesses in workers’ compensation cases”; Keenan v. Union Camp Corp., 49 Conn. App. 280, 286 (1998)); and thus it was within his discretion to accept the claimant’s testimony as more credible than that of the respondent employer. In their appeal, the respondents are essentially seeking to retry the facts of this case, which this board may not do. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999).

In further support of their appeal, the respondents contest the denial of their Motion to Correct. In their Motion to Correct, the respondents requested that the findings of fact be modified in order to adopt the evidence presented by the respondent employer which indicates that the alleged injury did not occur in a manner as described by the claimant. It was the duty of the trial commissioner to “consider the testimony and exhibits in the record, assess their credibility, and draw inferences and legal conclusions that are based on his impressions.” Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (Jan. 20, 2000). “When the trier reviews a Motion to Correct, he must evaluate the proposed changes in that same capacity. He is not required to grant corrections that would not affect the outcome of the case, and this board may not retry the matter or independently appraise the evidence underlying the proposed corrections on review.” Id. Accordingly, we find no error in the trial commissioner’s denial of the Motion to Correct.

We note that the respondents argue in their appeal that the date of injury is incorrect. Even if the respondents were correct in this contention, it would be of no moment, as it was a factual issue for the trial commissioner to decide. Roche v. Danbury Hospital, 3592 CRB-7-97-5 (July 13, 1998) (the failure to prove the exact date upon which an accidental injury occurred does not preclude this Commission from exercising jurisdiction over a claim for compensation); see also Flemmings v. Waveny Care Center, Inc., 3963 CRB-7-99-1 (March 2, 2000) (board affirmed the trial commissioner’s decision that the claimant sustained a compensable injury despite the claimant’s poor memory and inconsistent testimony regarding the date of the injury). As the trier’s findings regarding whether the claimant sustained a compensable injury are reasonably supported by the evidence, and his legal conclusion is sustainable by the underlying facts, we may not disturb his award. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Weiss v. Chesebrough-Ponds USA Co., 51 Conn. App. 106, 110 (1998). Accordingly, we affirm the decision of the trial commissioner regarding compensability.

Finally, we turn to the respondents’ argument that the award of temporary total disability benefits from December 12, 1997 to March 11, 1998 is not supported by the record. Specifically, the respondents argue that the medical reports are unclear regarding the claimant’s disability status, and appear to indicate that the claimant was partially disabled rather than totally disabled, and further argue that the claimant admitted during his testimony that he returned to work on March 2, 1998. (See 8/17/98 TR. at p. 35). We agree, and thus we will remand the issue of temporary total disability benefits to the trial commissioner for clarification.

Accordingly, this matter is remanded to the trial commissioner regarding the sole issue of temporary total disability benefits.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

Workers’ Compensation Commission

Page last revised: January 4, 2005

Page URL: http://wcc.state.ct.us/crb/2000/4012crb.htm

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