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Persico v. Sikorsky Aircraft Corp.

CASE NO. 4464 CRB-4-01-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 15, 2002

LINDA PERSICO

CLAIMANT-APPELLANT

v.

SIKORSKY AIRCRAFT CORP.

EMPLOYER

and

AIG CLAIM SERVICES, INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Peter Harvey, Esq., 895 Indian Hill Road, Orange, CT 06477.

The respondents were represented by Richard Aiken, Jr., Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the November 28, 2001 Finding and Dismissal of the Commissioner acting for the Fourth District was heard June 21, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 28, 2001 Finding and Dismissal of the Commissioner acting for the Fourth District. She contends on appeal that the trier erred by dismissing her claim that she sustained a compensable ankle injury in the course of her employment. We find no error on appeal, and affirm the trial commissioner’s decision.

The trial commissioner found that the claimant had been working for the respondent Sikorsky Aircraft Corp. for over twenty years as of October 1999, when she was employed as the lead person in the “kitting crib.” She alleges that she injured her right ankle on October 4, 1999, while attempting to pull a rope that was attached to a door. She first reported the injury on January 13, 2000, two months after the resolution of certain grievances that she had pending against her employer concerning an upgrade in her job assignment. She had been injured at work at least once prior to October 1999, and was aware that plant rules required the prompt reporting of an injury. On November 16, 1999, the day following the resolution of her grievance, she first sought medical treatment for the injured ankle. She was subsequently treated for it by several doctors, though she first treated with the Sikorsky medical department on January 13, 2000. The trial commissioner found that she had failed to meet her burden of proof, as her admittedly poor memory and the delay in reporting the injury convinced the trier that her allegations regarding the circumstances of the injury were not reliable. The claimant has filed the instant appeal from that decision.

It is well-settled that the trial commissioner is the finder of fact in a workers’ compensation matter, which entitles him to resolve all issues that concern the credibility of the evidence. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). Whether or not a claimant has sustained an injury arising out of and in the course of her employment is a quintessential issue of fact, and the claimant bears the burden of persuading the trier that such an injury has occurred. Herman v. Sherwood Industries, Inc., 244 Conn. 502, 505 (1998); Spatafore v. Yale University, 239 Conn. 408, 418 (1996); Grajales v. Aero-Clean Demolition Contractors, 4202 CRB-7-00-3 (Jan. 25, 2001). When one is dealing with the testimony of a witness, the trier has a great deal of leeway in deciding what sort of impression he draws from that testimony. He may reject evidence that superficially appears to be uncontradicted, and may omit facts from his written decision that would not affect its outcome given his assessments of credibility. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Phaiah, supra. This board may not disturb such a decision on review. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Warren, supra.

Here, the trier specifically found that the claimant voluntarily admitted that her recollection of events was not very good. Given the three-month delay in reporting her alleged injury, and the one-month delay in seeking treatment, the trier’s skepticism regarding the accuracy of the claimant’s description of her injury is understandable. The claimant contends on appeal, however, that the trier failed to sufficiently find the subordinate facts in order to render a just judgment, because he failed to address the testimony of Agnes Anna Shypula and Robert Eleazar, two of the claimant’s co-workers. Both witnesses testified that the claimant told them that she had sprained her foot shortly after it had happened, and there was no direct evidence to contradict the statements of either of those individuals. See April 10, 2001 Transcript, pp. 38-44; June 19, 2001 Transcript, pp. 10-21, 49-67. The claimant now seeks a remand so that specific findings may be made regarding the testimony of these two witnesses.

No one suggests that the trial commissioner was required to find the testimony of these witnesses credible. Whether or not their testimony was directly challenged, the trier was free to evaluate the demeanor of the witnesses, the quality of their testimony, and the interplay of that testimony with the rest of the case, and then decide if he wanted to reject or accept all, part or none of their statements. Phaiah, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). He was then within his rights to omit any discussion of this testimony if he found it unpersuasive, and therefore unimportant to the outcome of the case. Grajales, supra; Plitnick v. Knoll Pharmaceuticals, Inc., 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). Admin. Reg. § 31-301-3 states that the trier’s finding “should not contain excerpts from evidence or merely evidential facts, nor the reasons for his conclusions.” As the trial commissioner did not find the claimant’s testimony credible, and did not believe that she had met her burden of proof, he was entitled to dismiss her claim without specifically explaining whether and why he also found the testimony of Shypula and Eleazar unreliable.

The claimant expresses concern that the trier may have overlooked this testimony, forgetting to consider it at the time he made his decision. We note that the claimant did not file a Motion to Correct in this matter, thereby giving the trier the opportunity to amend his award by adding additional findings relating to the testimony of these witnesses. See Pallotto, supra; Plitnick, supra, 27-28. Such a motion is the proper vehicle for requesting corrections or additions to the factual findings based upon the evidence in the record. See Admin. Reg. § 31-301-4. Though a motion to correct the award by highlighting the testimony of Shypula and Eleazar might not have swayed the trier’s ultimate decision, it was a necessary step if the claimant wished to call the trier’s attention to that testimony, or to challenge that ruling on the ground that insufficient attention was paid to the testimony of those two witnesses. Regardless, we have no basis upon which to disturb the factual findings of the trial commissioner, as our role on review is not to second-guess his determinations of evidentiary credibility or those legal conclusions that naturally flow therefrom. Phaiah, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

The trial commissioner’s decision is accordingly affirmed.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

Workers’ Compensation Commission

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