State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Fiore v. LRT, Inc. d/b/a House & Garden Shop

CASE NO. 4494 CRB-7-02-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 28, 2003

FRANK FIORE

CLAIMANT-APPELLANT

v.

LRT, INC. d/b/a HOUSE & GARDEN SHOP

EMPLOYER

and

GAB ROBINS

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se at oral argument.

The respondents were represented by Brendan T. Canty, Esq., Kerin & Canty, P.C., 193 East Ave., Norwalk, CT 06855.

This Petition for Review from the January 28, 2002 Order of the Commissioner acting for the Seventh District was heard August 23, 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 January 28, 2002 Order of the Commissioner acting for the Seventh District. Arguing on his own behalf, he contends on appeal that the trier erred by refusing to open and modify the December 9, 1997 Finding and Award that resulted in the dismissal of his compensation claim. We find no legal error in our review, and affirm the decision of the trial commissioner.

The claimant originally claimed that he began working for the respondent House & Garden Shop as a shop mechanic in March or April 1992. He alleged that there was little or no ventilation in his work area, and that his job grinding lawnmower blades caused dust and other particles to accumulate in the air and on his person, which led to breathing problems by February 1993. He began treating for such problems with an allergist-immunologist, Dr. Bouboulis. The claimant told Dr. Bouboulis that he had never experienced breathing difficulties prior to his work at House & Garden Shop. Dr. Bouboulis was of the opinion that the acute onset of wheezing that the claimant experienced in March 1993 was likely a result of those work activities.

However, the trier noted that Dr. Bouboulis failed to mention that the claimant may have been suffering from an infection at the time those symptoms began. The trier found that the claimant had been using Prednisone prior to February 1993. A pulmonary specialist, Dr. Gerstenhaber, reviewed the claimant’s file and testified that his respiratory distress could be caused by something other than the grinding of lawnmower blades. Possible causes included his long history of exposure to second-hand smoke, and an infection he had been diagnosed with shortly before the symptoms began. Contrary to Dr. Bouboulis’ opinion, Dr. Gerstenhaber did not believe that the claimant’s lungs could have been contaminated by metal particles or fumes given the conditions present in his workplace. There was also testimony from the manager of the House & Garden Shop to the effect that a ventilation system was in place during the period of the claimant’s employment there. He and his sister, the service manager, both testified that they had neither received a complaint of breathing problems from the claimant, nor had they ever observed him experiencing such problems.

After considering all of these items, the trial commissioner concluded that the claimant sharpened no more than two or three blades per day, and that his workplace had an air filtration ventilation system. He also found that Dr. Bouboulis’ opinions, “while succinct and logical, were based on an inaccurate and incomplete history provided him by the claimant,” and thus chose to rely on the opinion of Dr. Gerstenhaber, to whom more accurate information had been provided. December 9, 1997 Findings, ¶¶ d, e. As for the claimant’s testimony, he found it less accurate than the testimony provided by the shop staff. Accordingly, he dismissed the claimant’s claim for occupational asthma. The claimant then appealed that decision to this board. He based his appeal on his allegation that the trier misjudged the credibility of witnesses, and on his request to submit additional evidence in the form of floor plan sketches that could have been produced at the formal hearing. As neither of these grounds was sufficient to warrant a reversal or a remand, this board affirmed the trier’s decision. Fiore v. LRT, Inc. d/b/a House & Garden Shop, 3747 CRB-7-97-12 (April 5, 1999).

The claimant subsequently attempted to modify the award pursuant to § 31-315 C.G.S., which allows an award to be opened “whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter.” A formal hearing was held on January 24, 2002, at which the claimant presented myriad arguments as to why he believed the 1997 decision to be incorrect. This included allegations that the original commissioner was given incorrect information, and that misrepresentations and perjured testimony were offered in the original proceedings. The trier concluded that the claimant was merely attempting to reargue or retry his claim, without offering any evidence that would allow him to reopen the 1997 decision under § 31-315. Therefore, his motion to modify the award was denied. The claimant has appealed that order to this board.

From the claimant’s brief and his testimony at oral argument, it appears that he does not fully understand the manner in which our workers’ compensation system functions. He wants this board to allow him to retry his case because he feels that he was not treated fairly at the original trial, partly because he did not have an attorney. In terms of specific complaints, he contends that some of the witnesses were dishonest, the condition of his workplace was altered between the time he worked there and the time that a photograph in evidence was taken, his testimony regarding previous use of medication was misunderstood, a key witness failed to make herself available for trial, and the trier overstated the importance of his exposure to paint and to his father’s secondhand smoke.

Though we are sympathetic to the claimant’s feelings of frustration at losing his case, our system does not allow for the retrial of actions every time a party is dissatisfied with the outcome. The claimant needs to understand that, when a workers’ compensation claim is brought to trial before a commissioner, the issues in the case are meant to be resolved at that time, in those proceedings. The commissioner’s job is to listen to the testimony of the parties and examine their evidence, and to decide which party’s evidence is the most believable. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002). Nobody but the trial commissioner has the power to decide whether or not a particular witness is telling the truth, or to decide which doctor’s opinion is more reliable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).

Because the claimant has the initial burden of proving his case, he must offer persuasive enough evidence to convince the commissioner that he has suffered a compensable work injury. Duddy, supra. The respondents, meanwhile, are allowed to offer evidence designed to refute that claim. If the claimant in this case believed that a particular witness was important to the proceedings, or believed that the evidence offered by his adversaries was inaccurate or misleading, it was up to him at that time to take the steps necessary to demonstrate that his belief was true. Whether this meant requesting a continuance so that the missing witness could be subpoenaed, or offering evidence to show the falsehood of the respondents’ assertions, it had to be done before the trial commissioner closed the record and rendered his decision. Unfortunately for the claimant, that was not done.

Once the trier makes up his mind that one person’s testimony is true or false, our legal system requires that his judgment be honored. Such assessments of credibility cannot be reversed on appeal, nor can they be undone by attempting to later retry the case in the hope of a different outcome. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). Though there is an appeal process following the decision of a trial commissioner, which the claimant took advantage of following the December 9, 1997 dismissal of his claim, not every mistake made at trial may be rectified on appeal. Instead, the role of this board is limited to reviewing decisions for errors of law that have been made by a trial commissioner. Id. In his previous appeal to this board, the claimant did not allege errors of law. Instead, he complained that the trier had misjudged the credibility of the testimony. Allegations that witnesses have misrepresented themselves and that the trier was mistaken in believing their testimony are not the type of claims that can be successfully raised on appeal, as they are wholly credibility-oriented. Therefore, the claimant’s appeal was dismissed. Following that decision, the claimant did not pursue the matter further by appealing to a higher court. Thus, the decision in his case became final.

In order for our system to function, it is necessary that we respect the trial process, and recognize the finality of decisions once that judicial process has concluded. Marone v. Waterbury, 244 Conn. 1, 11-12 (1998). Once a judgment in a workers’ compensation decision has become final, as has happened here, it may be reopened only pursuant to § 31-315, which allows modifications of decisions in certain situations where the circumstances of the case have changed somehow. The claimant has shown us nothing that would indicate such a change here. Instead, he freely admits that he wants this Commission to retry his case because he believes that witnesses were lying, and that the commissioner was mistaken in the way he interpreted the testimony. This cannot be done without ignoring the fundamental principles of our law, and without bypassing basic constitutional safeguards of due process. As we are not empowered to take those steps, nor would we favor doing so, we must dismiss the claimant’s appeal.

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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