CASE NO. 4786 CRB-1-04-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 19, 2005
SEACO INSURANCE COMPANY
The claimant was represented by Nicholas W. Francis, Esq., Law Office of Nicholas T. Kocian, P.C., 182 Collins Street, Hartford, CT 06105.
The respondents were represented by Clayton J. Quinn, Esq., Quinn Law Firm, LLC, 204 South Main Street, Milford, CT 06460 formerly of Cotter, Cotter & Quinn, LLC now Cotter, Cotter & Mullins, LLC.
This Petition for Review from the February 11, 2004 Finding and Award of the Commissioner acting for the First District was heard on May 13, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have filed an appeal from the February 11, 2004 Finding and Award of the Commissioner acting for the First District.1 In that Finding and Award the commissioner concluded claimant’s injury arose out of and the course of his employment. The pertinent facts are as follows.
On January 17, 2000 the claimant was at work loading and unloading mattresses at the respondent’s warehouse facility. In the course of performing this function the claimant was sometimes required to use a lift mechanism in order to store the mattresses to an area 12 feet above the floor. On the aforementioned date, the claimant fell from the lift mechanism to the concrete floor sustaining serious head injuries.
In proceedings before the trial commissioner the respondents did not dispute the claimant fell nor that he sustained serious injuries. However, they raised an affirmative defense to their liability as permitted in § 31-284(a). Sec. 31-284(a) provides in pertinent part;
An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. (Emphasis ours)
Under the respondents’ theory of the case it is their contention that the claimant was under the influence of opiates and/or cannabis at the time of the injury and his intoxication was a substantial factor in causing him to fall as well as contributing to his failure to attach his lifeline to his safety harness. Additionally they argue the claimant’s failure to secure his lifeline to his safety harness, in and of itself constituted an act of wilful and serious misconduct. Thus, given the affirmative defenses set out in § 31-284(a) and assuming the respondents sustained their burden of proof they should be relieved of liability under the Workers’ Compensation Act.
The trial commissioner concluded that the respondents failed to sustain their burden of proof. On appeal the respondents present a number of issues. Among the issues presented are (1) whether the trial commissioner applied the wrong burden of proof to determine whether the respondents should prevail on their claims of an affirmative defense, (2) whether the trial commissioner’s conclusions are legally inconsistent with the subordinate facts found, (3) whether the trial commissioner’s findings and ultimate conclusion result from an abuse of discretion, (4) whether the trial commissioner erred in refusing to grant the respondents’ Motion to Correct, (5) whether the trial commissioner awarded the claimant temporary total disability benefits without providing the respondents with proper notice that the issue was to be considered, and (6) whether the trial commissioner’s conclusion that the claimant was entitled to claim a filing status as head of household with five (5) exemptions was legally supported.
We begin our review with determining whether the trial commissioner applied the appropriate burden of proof as to respondents claimed affirmative defense. The respondents contend the trial commissioner required mathematically quantified levels of the amount of opiates and cannabis in claimant’s blood at the time of the fall. They argue that this is not only an impermissible legal standard but an impossible standard as current technology does not allow for the precise measurement of the quantity of opiates and/or cannabis in the claimant’s blood. The respondents argue that unlike alcohol intoxication by opiates and cannabis cannot be measured in exact quantifiable terms.
We do not find the trial commissioner imposed an impermissible burden on the respondents in their proof of the affirmative defenses raised. We note that in the Finding and Award the commissioner specifically references the burden of proof the respondents must meet in proving an affirmative defense. In ¶ E of the Finding and Award the trial commissioner stated, “Although the testimony of Dr. Bayer [respondents’ expert witness] was impressive, the Undersigned cannot find that his testimony and conclusions reach the level that it was more likely than not that the Claimant’s fall was due to intoxication or drug use.” The burden of proof referenced by the trial commissioner in ¶ E is legally correct. See Liptak v. State, 176 Conn. 320 (1978); Daniels v. Hartford, 459 CRD-1-86 (March 23, 1988), no error, 17 Conn. App. 819 (1988)(per curiam), cert. denied, 210 Conn. 809 (1989).
We next consider whether the trial commissioner’s conclusions were legally inconsistent with the subordinate facts found. In relation to this issue the respondents argue that a number of the trier’s conclusions were unreasonable and arbitrary and capricious. In essence the respondents argue that the trier’s failure to accept the opinion of their expert witness was legal error as no conflicting evidence was offered. The respondents’ expert medical witness was Dr. Marc Bayer, M.D., Chairman of the Department of Traumatology in Emergency Medicine for the University of Connecticut Health Center and the Hartford Hospital. Dr. Bayer also taught Emergency Medicine, was Chief of the Division of Medical Toxicology and Medical Director of the Connecticut Poison Control Center. Dr. Bayer was also board certified in Emergency Medicine and Toxicology and has lectured extensively in the field of toxicology, including drugs of abuse and how to detect them. Dr. Bayer is one of about 200 physicians in this country qualified as a physician toxicologist. See Findings ¶ 27-28.
Dr. Bayer testified, inter alia, that it was his expert opinion based on reasonable medical probability that claimant’s intoxication at the time of the fall was a substantial factor in causing the claimant to fall. Dr. Bayer’s opinion was predicated on an extensive records review. In reaching his opinion Dr. Bayer relied upon certain medical records and statements of witnesses which were not part of the record. See Brief of the Claimant/Appellee, p. 9.
The respondents argue the Appellate Court’s opinion in Paternostro v. Arborio Corp., 56 Conn. App. 215 (1999) is factually analogous. They note the Paternostro court affirmed a trial commissioner’s finding and conclusion that the respondent sustained its burden of proof as to an affirmative defense of serious and wilful misconduct on the part of the employee. The court held that a construction worker hit by an automobile while working on a highway and who was intoxicated at the time of the accident, was engaged in an act of serious and wilful misconduct as that conduct was in contravention of employer’s work rules prohibiting alcohol consumption. The respondents contend that if one substitutes opiates and marijuana as the intoxicating substance(s) the instant matter is factually identical to Paternostro.
In one sense the respondents are correct. However, Paternostro does not compel the trier in this matter to reach the same result as the trial commissioner in that matter. In fact the Paternostro court noted:
The standard applicable to the board when reviewing a commissioner’s decision is well established. The board sits as an appellate tribunal reviewing the decision of the commissioner. Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293, 734 A.2d 1036 (1999). “[T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner. . . .” (Internal quotation marks omitted.) Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 192, 737 A.2d 993 (1999). The commissioner may base his or her findings on circumstantial evidence; see Gaul v. Noiva, 155 Conn. 218, 224, 230 A.2d 591 (1967); and may rely on expert testimony. See State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993). Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Discuillo v. Stone & Webster, 43 Conn. App. 224, 226, 682 A.2d 145 (1996), aff’d, 242 Conn. 570, 698 A.2d 873 (1997). (Emphasis ours)
Paternostro, supra, 218-19.
As was noted in Paternostro, while we may have assessed the weight and credibility of the evidence differently than the trial commissioner here, we cannot substitute our findings for those of the trial commissioner unless legal error has been demonstrated. Further, along with the power of assessing the weight and credibility of the evidence the trial commissioner has the power to resolve evidentiary inconsistencies. The trial commissioner “may give credit to all, part or none of the testimony given by a lay or expert witness, while also retaining the authority to reject evidence that superficially may appear to be uncontradicted.” Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003)(citations omitted). While the findings and conclusion are not consistent with those urged by the respondents, they do not rise to the level of reversible error.
The respondents also argue the commissioner erred in failing to grant their Motion To Correct. As we have noted previously, findings will not be corrected unless they are without evidence or omit material facts that are admitted or undisputed. Grady v. St. Mary’s Hospital, 179 Conn. 662 (1980). Nor do the factual findings require correction unless the changed findings compel a different conclusion. D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933 (2003); Sellers v. Sellers Garage, Inc., 4762 CRB-5-03-12 (February 3, 2005); Loffredo v. Wal-Mart Stores, Inc., 4369 CRB-5-01-2 (February 28, 2002). Additionally, we note the respondents Motion To Correct did not provide the trial commissioner with specific references in the evidentiary record supporting the changes sought. See Brown v. State/DMR, 4748 CRB-6-03-11 (October 18, 2004).
In the February 11, 2004 Finding and Award, the commissioner also concluded the claimant was totally disabled and strongly suggested, and alternatively urged, the respondents to pay temporary total disability benefits and related bills.2 The respondents argue that these findings and conclusion were erroneous as claimant’s disability status and payment of bills relating to the claimant’s accident were not issues before the trial commissioner. We agree.
The transcripts and hearing notice clearly reflect that the issues for the trier’s consideration were the compensability of the claimant’s January 17, 2000 accident and the number of exemptions the claimant could claim. See August 14, 2001 Transcript, pp. 5-7 and February 11, 2002 Transcript, pp. 3-4. Any conclusions the trier reached as to claimant’s disability status and the payment of bills are to be disregarded. Further, the trial commissioner’s encouragement of certain future actions on the part of the respondents are without legal consequence. Cummings v. Twin Tool Mfg. Co., 12 Conn. Workers’ Comp. Rev. Op. 341, 343, 1542 CRB-1-92-10 (July 11, 1994), aff’d, 40 Conn. App. 36 (1996).
Finally, we consider whether the trial commissioner’s conclusion that the claimant was entitled to have his average weekly wage computed on the basis of his status as head of household with five exemptions, one for himself and one for each of his children, was erroneous as a matter of law. This finding and conclusion like those we have discussed previously, is predicated on the weight and credibility assigned to the evidence. What weight and credibility is accorded to the evidence is up to the commissioner. In the instant matter testimony provided by claimant’s conservator, Marta Valencia, as well as records of which the trier took judicial notice, indicated that the claimant was the father of four children. See December 26, 2001 Transcript, pp. 46, 51-52. The claimant testified he only had three children. See February 18, 2003 Transcript, p. 24. The commissioner appears to have assigned greater weight and credibility to the testimony of the claimant’s conservator and thus, the conclusion will not be disturbed.
We therefore affirm in part, and reverse in part.
Commissioners Stephen B. Delaney and Michelle D. Truglia concur.
1 We note that the instant matter was subject to postponements both at the trial level and during the pendency of this appeal. BACK TO TEXT
2 Paragraphs C, G and H of the February 11, 2004 Finding and Award stated the following:
C) The serious injuries suffered by the Claimant have left him totally disabled at least through the date of the last hearing, June 4, 2003.
G) Although not specifically listed as issues for the Formal hearing, it is strongly suggested that the Respondents pay the Claimant temporary total benefits from January 18, 2000 through the date of the last Formal hearing, June 4, 2003.
H) Also, the Respondents are strongly recommended to pay all of the attendant bills resulting from the Claimant’s compensable fall of January 17, 2000. BACK TO TEXT