CASE NO. 4979 CRB-2-05-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 27, 2006
BONNIE JEAN M. SLATER
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by Christian Sarantopoulos, Esq., Law Offices Sarantopoulos & Sarantopoulos, 143 School Street, Danielson, CT 06239-3023.
The respondent-employer, Broderick Macari was represented by DeAnn Varunes, Esq., O’Connell, Flaherty & Attmore, LLC, 22 Main Street, Moosup, CT 06354.
The Second Injury Fund was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the July 13, 2005 Finding and Award of the Commissioner acting for the Second District was heard January 20, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and George Waldron.
JOHN MASTROPIETRO, CHAIRMAN. The instant appeal involves a dispute as to whether the claimant was an employee of the respondent when she suffered a knee injury while covering boxes. The trial commissioner determined that she was an employee and therefore a compensable injury under Chapter 568 had occurred. The respondent has appealed. At first blush, this would appear to be a pure question of fact in which the determination of the trial commissioner cannot be overturned. Following a review of the evidence and law, we are satisfied our initial impression of the case was correct, and dismiss the appeal.
The trial commissioner found the following facts. The respondent, Broderick Macari, engaged from time to time in the enterprise of liquidating defunct businesses and in January 2003 was liquidating a mill in Providence, RI. Findings, ¶¶ 4-5. The claimant’s stepfather became involved in this liquidation project as he had not been paid by the respondent for previous work, and therefore received articles salvaged from the Providence mill to pay off the debt. Findings, ¶¶ 7-8. The claimant became involved in the liquidation project by working for her stepfather. Findings, ¶ 13. She testified she began working for the respondent in January 2003 to assist in removing articles from the mill. Findings, ¶ 19. She testified she worked five or six hours a day, five or six days a week on the project until March 20, 2003 and was paid usually in cash at a rate ranging between $7 to $10 per hour. Findings, ¶¶ 21-25. On March 20, 2003, the claimant was covering boxes of material salvaged from the mill with a tarp to protect them from the elements when she fell and injured her left knee. Findings, ¶¶ 26-28. The medical bills for the knee injury exceeded $24,000 and the claimant was totally disabled from March 24, 2003 to February 23, 2004. Findings, ¶¶ 47-48.
The trial commissioner determined in the Finding and Award of July 13, 2005 that the claimant offered the more credible testimony, Findings, ¶ A, and found she was injured in the course of employment with the respondent on March 20, 2003. Findings, ¶ H. The respondent did not file a Motion to Correct any of the facts found,1 but filed an appeal to this board challenging the commissioner’s Finding and Award.
The respondent’s appeal is based on the theory that the commissioner’s finding that the respondent employed the claimant was “not consistent with many of the Commissioner’s subordinate findings of fact.” Brief, p. 2. The respondent places great weight on a finding that “the respondent’s principal function is to take care of his physically and mentally infirmed mother,” Findings, ¶ 3 and a series of findings concerning the respondent’s business relationship with the claimant’s stepfather. Findings, ¶¶ 6-12. We are perplexed as to how any of these facts are inconsistent with the conclusion that on March 20, 2003 the claimant worked for the respondent. The respondent admitted he was in the business of liquidating a mill at the time of the accident, so the issue of caring for a relative is irrelevant. We are also puzzled as to how evidence of the respondent’s prior business relationships is inconsistent with the claimant’s assertion that she was employed by the respondent and injured on March 20, 2003.
Respondent’s attorney states in her brief these facts “are at odds with his ultimate conclusion that the Respondent employed and paid the claimant” because of his alleged financial incapacity to do so. Brief, p. 5. However, her client testified he “hired a Hispanic crew from Providence to clean the mill out and did not hire the claimant.” Findings, ¶ 45. Having testified he paid someone else to do this work, the claim he lacked the financial capacity to pay the claimant is dubious. The case comes back to credibility. The trial commissioner believed the claimant had been hired to do the cleanout work at the mill and did not believe the respondent’s denials.
In Liano v. City of Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) we held, “the trial commissioner is the sole person empowered to evaluate a witness’s credibility” citing the following reasons:
“Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom. . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.” (Internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 327; Mottolese v. Burton, 267 Conn. 1, 40 (2003).
There are no facts in the record which would lead us to conclude the trial commissioner reached an incorrect conclusion as to liability. Once he concluded the claimant’s account was credible, and determined the respondent’s denial was not credible, he was bound to issue a finding that the respondent was an employer and was responsible for the March 20, 2003 accident. The conclusions drawn by him from the facts must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Tovish v. Gerber Electronics, 32 Conn. App. 595, 603 (1993). We find no such improper inferences in this case.
Therefore, the appeal is dismissed. Insofar as any benefits due the claimant remain unpaid pending appeal, interest is awarded as required by § 31-301c(b) C.G.S.
Commissioners Nancy E. Salerno and George Waldron concur in this opinion.
1 As respondent did not file a Motion to Correct, all facts in the record are deemed admitted for the purposes of this appeal and this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4; Soto-Velez v. Michael’s Chrysler-Plymouth, 4628 CRB-2-03-2 (February 3, 2004); Kelley v. Venezia Transport Services, 4184 CRB-2-00-2 (March 8, 2001); Crochiere v. Board of Education, 227 Conn. 333, 347 (1993). BACK TO TEXT