Palma v. Manuel A. Pinho Landscaping, Inc.

The claimant was represented by Joseph Tauber, Esq., 99 Prospect Street, Stamford, CT 06901.

The respondents were represented by Frederick Monahan, Esq., Law Office of Larry Lewis, 639 Research Parkway, Meriden, CT 06450.

This Petition for Review from the May 18, 1999 Finding and Dismissal of the Commissioner acting for the Seventh District was heard December 3, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the May 18, 1999 Finding and Dismissal of the Commissioner acting for the Seventh District. He contends that the trier erroneously dismissed his workers’ compensation claim. We affirm the trial commissioner’s decision.

The findings of fact relate that the claimant was employed as a laborer-landscaper by the respondent from 1995-1998. On June 2, 1997, he was occupied mulching and transplanting bushes. He alleges that he injured his back while extracting a bush from the dirt, and claims to have reported the injury to his employer. He continued to work the rest of that day, but saw Dr. Costanzo, a chiropractor, the next day for back massage and manipulation. The claimant continued at his job through June 12, 1997, when he failed to call or report to work. The respondents deny that the claimant was injured on the job.

The trier found that the claimant, while represented by different counsel, had filed a claim for workers’ compensation benefits listing a February 25, 1997 injury date. The respondents contested on the ground that the claimant was not working that day, and said that the claimant had never mentioned such an injury. The claimant later retained new counsel who, according to the trier, “represented at the informal hearing of March 6, 1998, that the injury of June 12, 1997, was an aggravation of the February 25, 1997, injury.” Findings, ¶ 7. The trial commissioner noted that the claimant first treated with Dr. Costanzo on June 3, 1997, whose medical report made no mention of a previous injury. The respondents also testified that the claimant had complained of back pain from the onset of his employment, which discomfort he attributed to well-digging work that he had performed in Guatemala. The trier concluded that the claimant’s evidence lacked sufficient credibility, and dismissed his claim. The instant appeal followed.

The claimant—who did not file a Motion to Correct pursuant to Admin. Reg. § 31-301-4, and has not provided this board with a transcript of the formal hearing—raises two points of error in his brief. Initially, he contends that the commissioner erroneously dealt with a June 12, 1997 injury rather than a June 2, 1997 injury, stating that the commissioner never made any factual findings regarding the June 2, 1997 incident. We refuse to construe the trier’s use of the June 12 date as anything other than a scrivener’s error. It is apparent from the contents of the factual findings that the trier was simply guilty of substituting “June 12” for “June 2” in § II and § III, ¶ 7 of his decision, rather than harboring the misimpression that the claimant was alleging an inconsistent date of injury. In ¶ 10, for example, the trier refers to the correct injury date of June 2, 1997. The claimant did not move to correct these minor errors, and we will not reward his inaction by reversing the trier’s decision on that ground. Instead, as we have done in past cases, we will overlook these inaccuracies, as they do not appear to be material to the trier’s ultimate decision. See, e.g., Grimme v. Railroad Stores, Inc., 3722 CRB-5-97-11 n.2 (Nov. 17, 1998); Davis v. New London Board of Education, 11 Conn. Workers’ Comp. Rev. Op. 245, 247-48, 1346 CRD-2-91-11 (Nov. 11, 1993).

The claimant also contends that, pursuant to ¶ 7 of the findings, the trier improperly relied upon statements allegedly made at the informal hearing in characterizing the claimant’s description of his June 2, 1997 injury as a recurrence of the February 25, 1997 incident. The claimant states that “no notice of such reliance was given by the Commissioner at the Formal Hearing; therefore counsel did not have the knowledge or opportunity to respond to the claim that the June 2, 1997 accident was an aggravation of the February 25, 1997 accident.” Brief, 2. He argues, moreover, that the respondents failed to contest the February 25, 1997 incident in a timely manner, and thus the compensability of that injury should be deemed accepted. We note that a Motion to Preclude was filed on November 10, 1997 with respect to that injury, which motion does not appear to have been ruled upon.

There are several obstacles confronting the claimant with respect to this appellate argument, however. First, the petition for review indicates that he did not order a transcript of the formal hearing. Thus, it is impossible for us to verify what was discussed at that proceeding. It is well-established policy that the trier of fact should refrain from relying on information extraneous to the record as support for his factual determinations. However, we cannot simply rely on the claimant’s assertion that the June 2, 1997 incident was treated by the commissioner as a potential aggravation of the February 25, 1997 injury solely on the basis of comments made at the informal hearing, without any follow-up at the formal. The claimant is responsible for providing this board with an adequate record for review. Spano v. Frank Teti Siding, 3181 CRB-6-95-10 (Mar. 19, 1997). Unfortunately, sufficient actions were not taken to that end.

Similarly, the claimant did not file a Motion to Correct with the trial commissioner. Not only does that preclude this board from disturbing the factual findings unless they are without even an iota of support in the evidence; Prioli v. Connecticut State Library/Arts Commission, 3955 CRB-6-98-12 (Jan. 13, 2000); under the now-hazy circumstances of this case, it prevented the trier from reexamining his own thought processes in the event that he relied upon an improper factor in making his ruling. Again, the claimant’s omission of a step in the appellate process has made meaningful review more difficult.

Also, the claimant states in his brief that “there was no medical treatment or monetary loss for the February 25, 1997 incident,” which was why his counsel did not pursue that claim. Brief, 2. If this is so, then the claimant’s medical treatment and/or monetary loss must have been based on the June 2, 1997 incident. The burden was on the claimant to prove that such an injury occurred. Menard v. People’s Bank, 3887 CRB-2-98-9 (Nov. 23, 1999). The trier found, as was his prerogative as the arbiter of credibility, that the claimant’s testimony and evidence regarding this incident were less persuasive than those of the respondents. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). On appeal, this board is not empowered to reassess the weight of the evidence in his stead. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Instead, we may only interfere where the trier has committed errors of law that have likely affected the outcome of the case. The record provided by the claimant does not establish that such an error was committed here. The irregularities raised by the claimant are uncertain, and from our vantage appear to be, at most, harmless error.