State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Smith v. Salamander Designs, LTD

CASE NO. 5205 CRB-1-07-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 13, 2008

DAVID SMITH

CLAIMANT-APPELLANT

v.

SALAMANDER DESIGNS, LTD

EMPLOYER

and

PEERLESS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Daniel B. Scott, Esq., Attorney at Law, 22 Pine Street, #214, Bristol, CT 06010.

The respondents were represented by Dominick Statile, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the February 22, 2007 Finding and Dismissal of the Commissioner acting for the First District was heard October 19, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this case is appealing the denial of his claim for benefits from an injury he asserts was the result of a fall at work. The trial commissioner denied his claim as he found the claimant did not prove the injuries occurred during the course of employment and he found respondent’s key witness more credible than the claimant. Since an appellate panel such as ours cannot reverse a fact-finder’s credibility assessment, we affirm the Finding and Dismissal and dismiss this appeal.

The events of February 16, 2006 prompted this claim. On that day the claimant was working for the respondent as a maintenance worker at their furniture design facility in Manchester, where he had been employed for about a year and a half. He also worked on the construction of offices within the facility. Early in the day he was working on wiring the saw room at the facility, and then went upstairs to fix the heel of a co-worker’s shoe. The claimant asserts that upon his return he fell down the stairs after tripping on a bottle cap. A co-worker, Jeffrey Walker, did not see the fall but heard the claimant scream, attended to him, and then summoned the facility’s production manager, Michael Babowicz.

The trial commissioner found that Mr. Babowicz testified to inspecting the scene of the event, and finding the bottle cap. He also ascertained from a co-worker of the claimant that a bottle cap had been on the stairs prior to the claimant’s mishap, but that the co-worker had removed it from the stairs a half hour prior to the event. The claimant said he had injured his right shoulder and right knee, but refused to be transported to an emergency room for his injuries, and chose to drive himself to St. Francis Hospital. After a long wait at St. Francis without being examined, he traveled on to the UConn Health Center in Farmington where he was treated and released.

The trial commissioner found the exam at UConn Health Center revealed no swelling to either the shoulder or the knee, and no limitations on the range of motion for either joint. The respondents provided medical evidence of prior injuries to the claimant’s knee and shoulder; including two prior shoulder surgeries leading to a 20% permanency rating for the shoulder; and a recommendation from an orthopedic surgeon that the claimant should have an ACL reconstruction of his knee.

The trial commissioner also considered the issue of a surveillance camera which had been aligned so as to view the stairway. At the time of the incident it had been moved. The claimant denied having moved the camera. Mr. Babowicz had testified that the claimant was in a position to have moved the camera.

Based on those subordinate facts, the trial commissioner concluded that the claimant failed to prove that his accident occurred during the course of his employment, noting the lack of witnesses and the preexisting injuries to the body parts that the claimant said were injured in the event. He found the testimony of Michael Babowicz to be more credible than that of the claimant on the issue of the surveillance camera. The claimant filed a Motion to Correct the Findings to add findings supportive of compensability. Those corrections were denied by the trial commissioner and this appeal has ensued.

The claimant’s appeal is based on the argument that the trial commissioner failed to consider admitted or undisputed facts. The claimant also argues that the trial commissioner’s conclusions were inconsistent with the facts on the record. These issues go to the discretion of the trial commissioner.

“In reviewing this instant decision, our standard of review is deferential to the finder of fact. ‘As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.’ Daniels v. Alander, 268 Conn. 320, 330 (2004).” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).

The claimant states in his Reasons of Appeal in paragraph B. 1. that it is “undisputed” that he fell on the stairway. It does not appear the trial commissioner was thoroughly convinced that this occurred, however. The trial commissioner noted the absence of an eyewitness to the event and credited testimony regarding placement of the bottle cap which was alleged to have triggered the fall. Mr. Babowicz testified at the hearing that he found the location of the bottle cap after the fall, “very odd. I would think that the bottle cap would have flown if he slipped on something like that,” November 22, 2006 Transcript, pp. 9-10.

The trial commissioner also noted that the surveillance camera had been moved so as it did not observe the stairway. These facts could reasonably generate skepticism as to whether the event occurred in the fashion as described by the claimant.1 The trial commissioner had no obligation to accept the claimant’s testimony at face value.

There is a substantial body of law concerning Workers’ Compensation in Connecticut supporting the authority of a trial commissioner to disregard evidence which he does not believe or does not find probative.

“In Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999) the Appellate Court held, ‘[t]he trier may accept or reject, in whole or in part, the testimony of an expert.’ We have discussed the discretion of a trial commissioner to disregard evidence in a number of our cases. ‘This factfinding discretion entitles the trier to credit all, part or none of any doctor’s testimony, and to reject evidence that superficially appears to be uncontradicted.’ Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). ‘Inconsistencies in the evidence must be resolved by the trier, and she 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), aff’d, 82 Conn. App. 905 (2004)(per curiam).” Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006).

Even, assuming arguendo, the stairway accident occurred exactly as the claimant testified, there was still the obligation on the claimant’s part to prove that his injuries were the result of injuries he sustained in the workplace. The claimant asserts that the cause of his knee and shoulder ailments was the fall at the workplace and testified both his knee and shoulder were badly swollen after the incident. November 9, 2006 Transcript, p. 30. The respondents presented the medical report prepared by UConn Health Center immediately after the incident which indicated neither the knee nor the shoulder was swollen. The report indicated the claimant had no impairment of range of motion and all x-rays were negative for fracture. Respondent’s Exhibit 5. The claimant had a previous rotator cuff tear of his right shoulder for which he received a permanency award. Respondent’s Exhibit 6. His treating physician had recommended reconstruction of the claimant’s knee ACL about a year before the incident. Respondent’s Exhibits 1 and 2. Therefore, the trial commissioner was presented with an alternative explanation for the claimant’s medical condition.

“The burden of proof in a Workers’ Compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001) . . . . ‘In this matter, the trial commissioner chose not to credit the claimant’s medical evidence as to causation.’ ” Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006).

See also Do, supra, (respondent under no duty to present its own expert testimony; claimant’s evidence must prove causation).

Consequently, while the claimant argues the trial commissioner “totally disregarded the only two medical experts who commented on causal connection”2 we believe such a determination was within his discretion. We may infer the trial commissioner simply decided the claimant lost a credibility battle with the respondent’s witnesses. Resolving such a dispute is uniquely and exclusively the province of the trial commissioner. Berube, supra. The claimant charges that such a determination that Mr. Babowicz was more credible than the claimant was “beyond unreasonable” since the claimant denied moving the surveillance camera. We are not so persuaded. For example, a reasonable fact-finder might well credit the testimony of Mr. Babowicz that he believed prior to the February 16, 2006 incident that the claimant would not be working much longer for Salamander. November 22, 2006 Transcript, pp. 22-23. This could lead a fact-finder to discount the claimant’s story. The trial commissioner had the opportunity to view the opposing witnesses as they testified and we must defer to his judgment.

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. Burton v. Mottolese, 267 Conn. 1, 40 (2003).

The trial commissioner herein decided the claimant failed in his burden of proof. We believe the record in this case demonstrates this was a reasonable conclusion. Since we must extend deference to such a conclusion; Do, supra, and Lentini, supra, we affirm the Finding and Dismissal and dismiss this appeal.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 The claimant argues that a witness to the event did exist, Jeffrey Walker, who heard the event. We cannot find error on the part of a trial commissioner who deems testimony from an “ear witness” less probative than eyewitness testimony as to the cause of an alleged fall down injury. BACK TO TEXT

2 Claimant’s Exhibit E is a report from Dr. Peter Barnett, who examined the claimant on behalf of the respondents. Dr. Barnett stated in his June 6, 2006 report “. . . it is my impression based on the history obtained from the gentleman that the trauma sustained in the fall on February 16, 2006 has aggravated these underlying pre-existing conditions. . . .” We note our precedent establishes a trial commissioner may decide not to credit an expert opinion which relies on a patient narrative the commissioner deems unreliable. Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006). BACK TO TEXT

Workers’ Compensation Commission

Page last revised: March 28, 2008

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