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Hernandez v. Pizzaria 101 and Family

CASE NO. 5254 CRB-2-07-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 8, 2008

GUSTAVO HERNANDEZ

CLAIMANT-APPELLANT

v.

PIZZARIA 101 AND FAMILY

EMPLOYER

and

NATIONAL GRANGE MUTUAL INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by George W. Kramer, Esq., 47 Hunters Ridge, Rocky Hill, CT 06067.

The respondents were represented by Keith E. Marquis, Esq., Law Offices of Keith E. marquis, 205 Church Street, suite 636-637, New Haven, CT 06510.

This Petition for Review from the July 24, 2007 Finding and Dismissal of the Commissioner acting for the Second District was heard on July 25, 2008 before a Compensation Review Board consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the July 24, 2007 Finding and Dismissal of the Commissioner acting for the Second District. We find no error, and affirm the decision of the trial commissioner.1

The following factual determinations are pertinent to our review. The claimant had been employed as a cook by the respondent-employer restaurant for approximately one year prior to July 5, 2006 (the date of injury), and an employer/employee relationship existed between the claimant and respondent-employer at all relevant times herein. The claimant, who was in charge of the kitchen, generally worked twelve hours per day, from 9:00 a.m. to 9:00 p.m., and parked his car in the lot located on the premises of the respondent-employer. The other employees at the restaurant knew that the claimant was a homosexual. On July 5, 2006, the claimant sustained serious injuries when he was attacked by a co-worker in the parking lot owned by the respondent-employer.

Aramis Triana, the claimant’s assailant, was employed by the respondent-employer sometime in December of 2005. The claimant, who at first considered Triana a friend and had loaned him money, testified that although he was initially sexually attracted to Triana, the attraction lasted for only about a month, after which they were able to work together at the restaurant and “the claimant’s sexual orientation was not a problem.” Findings, ¶ 6. However, the claimant testified that approximately two months prior to the assault, several job-related issues arose between the claimant and Triana concerning Triana’s tardiness and alleged unhappiness with the claimant’s supervisory position.

On July 5, 2006, both the claimant and Triana finished work at approximately 9:00 p.m. The claimant testified that Triana went out to the parking lot first and the claimant stayed behind to make sure the kitchen was ready for the next day.2 As the claimant was preparing to leave the parking lot, Triana asked the claimant to assist him in moving a piece of wood from behind the restaurant. When the claimant did so, Triana unexpectedly began attacking the claimant, which attack left the claimant seriously injured.

Two of the claimant’s co-workers, both of whom were inside the restaurant at the time of the attack, gave statements to the police indicating they had thought the claimant and Triana were friends. They both also stated they were not aware of any ongoing feuds or arguments between the claimant and Triana. One of the co-owners of the restaurant, who was also inside the restaurant at the time of the attack, likewise gave a statement to the police indicating that to the best of his knowledge, the claimant and Triana “were good friends and they had worked all day together without any problems.” Findings, ¶ 3. A third co-worker, who was not in the restaurant at the time of the incident, afterward told the police that she had been dating Triana since May 2006 and had never witnessed an argument or a fight between the claimant and Triana.

In his statement to the police, Triana said that after he and the claimant had left the restaurant, he confronted the claimant regarding the claimant’s alleged statement to several individuals in Triana’s hometown in Mexico that Triana had had a sexual relationship with the claimant. Triana believed this statement had gotten back to an exgirlfriend. Triana indicated that he then began fighting with the claimant in the respondent-employer’s parking lot.

Based on the foregoing, the trial commissioner found that “[t]he claimant’s assault on July 5, 006 had nothing to do with his employment, did not flow from his employment, and his employment did not contribute to it.” Findings, ¶ F. Rather, the trial commissioner determined the claimant’s assault was the result of the personal relationship between the claimant and his assailant and occurred because of feelings of “anger or ill will between them.” Findings, ¶ G. The trial commissioner found that prior to the assault, the claimant and his assailant appeared to be friends and to have a good working relationship. As the claimant’s injuries were neither the result of the conditions of employment nor flowed from it as a “natural consequence,” the trial commissioner concluded the claimant’s injuries did not arise out of his employment with the respondent-employer.

The claimant filed a Motion to Correct, which was denied in its entirety, and the claimant then filed this appeal, contending the trial commissioner made numerous errors of fact concerning the nature of the professional relationship between the claimant and Triana and in concluding the claimant’s sexual orientation was not an issue for Triana. It is the claimant’s position that there is sufficient evidence in the record to prove the existence of a “nexus” between the assault on the claimant and the claimant’s employment. Appellant’s Brief, p. 3.

This board’s role in assessing on appeal a trial commissioner’s determinations as to whether an injury has arose out of employment is well settled: “[t]o the extent that we have articulated a standard for reviewing a determination by a commissioner that an injury arose out of the employment, we have treated this issue as factual in nature and, therefore, have accorded the commissioner’s conclusion the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause.” Fair v. People’s Savings Bank, 207 Conn. 535, 541 (1988). “It is . . . immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Id., at 540.

With specific regard to the issue of workplace assaults, our Supreme Court in Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355 (1938) held that, “[i]f one employee assaults another employee solely to gratify his feeling of anger or hatred, the injury results from the voluntary acts of the assailant and cannot be said to arise either directly out of the employment, or as an incident of it.” Id., at 358. “The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery.” Id., at 361362, quoting Madden’s Case, 222 Mass. 487, 495 (1916). It is also necessary that the employer “approve of and acquiesce in” the conditions of employment which led to the injury. McNamara v. Hamden, 176 Conn. 547, 556 (1979). “Where an employer has knowledge, actual or constructive, of the conditions under which the employment is actually being carried on and permits them to continue, they become conditions of employment.” Stulginski, supra, at 361. However, “[w]hen the animosity or dispute that culminates in an assault is imported into the employment from claimant’s domestic or private life, and is not exacerbated by the employment, the assault does not arise out of the employment ….” Fair, supra, at 542, quoting Larson’s Workmen’s Compensation Law, § 11.21.

In the instant matter, the claimant contends, contrary to the trial commissioner’s factual findings, that Triana resented the claimant’s supervisory status and the claimant’s criticisms of Triana relative to the latter’s frequent tardiness and failure to perform the duties of his employment. The claimant asserts that Triana would often throw “temper tantrums” when disciplined by the claimant and that the claimant complained to one of the co-owners of the restaurant about the disciplinary problems with Triana. The claimant also maintains that the claimant’s sexual orientation bothered Triana.

Unfortunately, apart from the claimant’s testimony at the formal hearing, we find no basis for the claimant’s assertions in the evidentiary record and, thus, no support for the proposition that the employer approved of or acquiesced in a pattern of behavior which culminated in the attack on the claimant. Most significant, the assailant himself told the police in his statement that,

The reason that I struck Gustavo today was because he talked about my person. That was the personal motive why I struck him. I do owe Gustavo $3,000.00 that he let me borrow. I told him that I would return it to him in Mexico. Gustavo told the people in Mexico that I slept with him. That bothered me because my exgirlfriend Maya became aware of that.

Claimant’s Exhibit A (July 13, 2006 Witness Statement of: Jimenez-Triana, Jose Aramis).

Triana also told the police, somewhat enigmatically, that, “I believe that Gustavo Romero feels uncomfortable because I changed my way of being. Sometimes he feels worried and upset with me.” Id.

The arrest report further underscores the personal nature of the attack on the claimant. In that report, the arresting officer wrote that, “Aramis [Triana] stated verbally and in a written statement that he and Gustavo Romero are friends and work together at Pizza 101. That Aramis further stated that he had borrowed $3,000.00 from Gustavo for the purchase of a car. That Aramis also stated that Gustavo is Gay and he was always buying things for him. That Gustavo had called Aramis’ ex-girlfriend in Mexico and told her that he (Aramis) was Gay.” Id. (July 6, 2006 Arraignment Report & Affidavit).

Finally, the public safety investigation report filed in this matter recites that Triana told the officer the claimant was gay, was always buying him presents, and wanted to have sexual relations with him. Triana also stated that he thought the claimant had called Triana’s ex-girlfriend in Mexico and told her that he and Triana had had sex, and “[t]hat on this date (07/05/06) he confronted Gustavo after work and asked him why he was talking nonsense.” Id. (July 13, 2006 State of Connecticut, Department of Public Safety-Investigation Report).

The claimant’s assertions with regard to Triana’s motives are similarly belied by the witness statements taken by the police after the incident. For instance, as mentioned previously herein, Hailey Petricola, Triana’s girlfriend, told police that, “I . . . began dating Aramis since May of 2006. I have never known Aramis and Gustavo to even argue much less fight. Everyone knows that Gustavo is gay and Aramis never gave him a problem over that.” Id. (July 7, 2006 Witness Statement of Hailey Petricola). The public safety investigation report further reveals that Ms. Petricola told the officer that “everyone knows that Gustavo is gay and that he is always trying to ‘hit on’ everyone including ‘Aramis.’ ” Id. (July 13, 2006 State of Connecticut, Department of Public Safety-Investigation Report).

Similarly, Ecaterina Pasiakos, the daughter of the co-owner of the restaurant who was not at the restaurant at the time of the attack, told police that, “Gustavo and Aramis are good friends and they worked fine together today. I did not see or hear them arguing at all today. I did not hear any yelling or screaming at all before Gustavo came stumbling inside Pizza 101. I do not know what caused these two men to fight.” Id. (July 5, 2006 Witness Statement of Ecaterina M. Pasiakos). Finally, the delivery driver, Daniel Whipple, told police that, “I am not aware of any ongoing feuds between Gustavo and Aramis but I never socialize with them after work.” Id. (July 5, 2006 Witness Statement of Daniel R. Whipple).

Even more problematic for the claimant, in light of the Stulginski precedent, is the fact that the employer himself disclaimed all knowledge of the existence of an ongoing feud or even any occasional dissension between the claimant and Triana. In his statement, Christos Loukas, the co-owner of the restaurant who was inside the restaurant at the time of the attack, told the police that,

I have no idea why Aramis would fight Gustavo. They are good friends. Aramis and Gustavo worked all day together from 10:00 AM until 9:00 PM, without any problems. At about 5:00 PM, Gustavo did ask me if he could leave early because he was tired, but I told him he couldn’t because we didn’t have another cook. Gustavo then went back to work, and he did not mention any problems tonight at all.

Id. (July 5, 2006 Witness Statement of Christos N. Loukas).

Clearly, the evidentiary record does not support the proposition that the employer, who happened to be on the site at the time, had any knowledge, either actual or constructive, of the existence of conditions of employment at the restaurant which somehow either contributed to Triana’s attack on the claimant or exacerbated the ill-will between the claimant and Triana. See Stulginski, supra, at 361.

Finally, even the claimant’s own statements, some of which are occasionally contradictory, undercut the theory that the assault arose out of the employment. In his witness statement, the claimant told that police that,

I never told anyone in Mexico that I slept with Jose Aramis. I am “Gay.” Me and Jose Aramis never fought. I was angry with him because I used to help him, and when I asked him for a favor or a ride to work, he did not want to. This past December 31, 2005, during Christmas, I bought him a pair of pants and perfume as a gift from a friend. For a while, I loved Jose Aramis, but then realized it was only a friendship. I never had a relationship with Jose Aramis.

Id. (July 13, 2006 Victim Statement of: Hernandez Romero, Gustavo)

However, at trial, the claimant told his attorney that he had not considered Triana a friend for most of the sixmonth period that he knew him.3 The claimant also denied ever making sexual or romantic advances towards Triana, asserting, “I believe [Triana] didn’t like gay people. Maybe he didn’t like the fact that I used to work there with him.” June 19, 2007 Transcript, p. 10. As mentioned previously, the claimant testified that he and Triana “had problems at work because I believe he didn’t like me to be in charge of the kitchen. I would have a better position than him.” Id. The claimant also testified that he had complained to the employer about Triana’s tardiness one week prior to the incident, and that Triana became angry when he discovered the claimant had gone to the employer.4 Id., p. 11. The claimant contended that when he complained to the employer regarding Triana’s behavior, the employer didn’t seem to care.5 Id., p. 11.

During cross-examination by respondents’ counsel, the claimant admitted that he had brought Triana several Christmas presents “as a friend,” which presents consisted of some perfume and a pair of pants, and that he was attracted to Triana for a month after he met him. Id., p. 16. When respondents’ counsel queried the claimant regarding the appropriateness of his gift choices for Triana, the claimant replied that he would buy such gifts for any co-worker.6 The claimant also testified that he and Triana had fought “often” two months prior to the incident, and claimed he could not remember telling the police that he and Triana never fought. Id. When respondents’ counsel queried the claimant as to whether Triana had a problem with the claimant’s sexual orientation, the claimant replied, “[a] little bit.” Id., p. 21.7 Finally, the claimant denied ever calling Triana’s girlfriend in Mexico and also denied that Triana ever accused him of doing so. Id., p. 20.

During his redirect examination, the claimant testified that he disagreed with Hailey Petricola’s assertion that everyone knew Gustavo was gay and Triana never gave him any problems over that. Id., p. 21. The claimant also clarified that when he had told the police he and Triana had never fought, he meant he and Triana had never had a physical altercation. Id., p. 22.

Based upon the foregoing analysis, we conclude that the evidentiary record contains ample support for the trial commissioner’s inferences in this matter relative to whether the claimant’s injuries arose out of the conditions of employment at the subject restaurant. The statements of the witnesses uniformly refute the claimant’s allegations that an ongoing feud existed between himself and his assailant. The witness statements also undercut the claimant’s assertions at trial that his sexual orientation presented a problem at the workplace for Triana or anyone else, for that matter. Finally, the contradictions contained within the claimant’s testimony at trial and the statements given to the police do not serve to support the claimant’s contention that the attack in which he sustained admittedly very severe injuries somehow arose because of ongoing conditions at the workplace which were both known and acquiesced to by the employer.

Ultimately, the trial commissioner arrived at a determination adverse to the claimant’s position, but it was his prerogative to do so. “The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits.” McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007). See also Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). In addition, it is a well-settled maxim of appellate review that the reviewing body is not free to substitute its own factual findings for those of the trier. “If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal.” McMahon, supra. See also Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). The trier is best suited to make such factual findings, because,

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.

Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006) quoting Burton v. Mottolese, 267 Conn. 1, 40 (2003).

In light of the above-stated clearly prescribed mandate governing our role as a reviewing body, we do not choose to overturn the trial commissioner’s conclusions regarding the credibility of the parties to this matter.

We note that the claimant has attempted to draw a parallel between his claim and two other previously litigated matters in which employees sustained compensable injuries in workplace assaults. We find both these cases to be easily distinguishable. In Chavarriaga v. Pathmark, 5 Conn. Workers’ Comp. Rev. Op. 16, 363 CRD-7-84 (March 24, 1988), the claimant, who worked the night shift, was abducted at gun point from the employer’s indoor parking garage and taken to a nearby cemetery where his abductor shot him in the face. The respondents appealed the Finding and Award on the grounds that the evidentiary record did not support the trial commissioner’s finding that the employer’s parking lot, which “was a portion of the Common Area leased by the respondent-employer,” id., at 17, was part of the employer’s premises. Citing Hughes v. American Brass, 141 Conn. 231 (1954), in which the claimant had fallen in the employer’s parking lot because of ice and snow, this board disagreed. “It is enough that the going to and from work across the employer’s property can be reasonably held to be an incident to the employment within the contemplation of the parties because the employer knew that it was customary and acquiesced in it and because it was for his benefit in furthering the employment.” Id., at 234.

This board also referenced Bushey v. Iseli Co., 2 Conn. Workers’ Comp. Rev. Op. 20, 21, 120 CRD582 (1983), aff’d, 3 Conn. App. 370 (1985), cert. denied, 196 Conn. 803 (1985), in which we had remarked (in dicta), that, “[w]e agree that an employer parking lot maintained for the convenience of employer and employee is an extension of the employment premises.” In light of the Hughes holding and our observation in Bushey, we concluded that the Chavarriaga parking arrangement was “part of the employment and because of it that the claimant had parked his car in the area where the assault initiated” and concluded that the claimant was therefore “put into a zone of danger by virtue [of] the employer’s parking procedures.” Chavarriaga, supra, at 18. However, given that the Chavarriaga claimant was abducted and assaulted by a total stranger, and the instant claimant was assaulted by a co-worker with whom he was purported to have a friendly relationship, we consider the two cases factually distinguishable.

Similarly, in DiManno v. Pompei’s Lounge, 2 Workers’ Comp. Rev. Op. 90, 108CRD-1-81 (July 27, 1984), the claimant, a waitress, also sustained injuries in an assault which occurred in the respondent-employer’s parking lot. The claimant, after having become “involved in a verbal altercation with some patrons,” id., at 91, refused to serve them any more alcoholic beverages and the patrons subsequently left the restaurant. The claimant then saw one of the patrons leaning against her car out in the parking lot; when she went out to investigate, the patron got into his car and proceeded to back out of his parking spot with his car door still open, knocking the claimant down and dragging her through the parking lot. The DiManno respondents argued that the claimant’s action in going out to her car in the parking lot was not “incidental” to her employment because it was not “regular.” This board held that “such reasoning is based on an impermissibly narrow reading of McNamara,” supra, in that “the McNamara decision did not intend to narrow the spectrum of compensable injuries. It meant to broaden it . . . .” DiManno, supra, at 91.

Nevertheless, as was the case with Chavarriaga, we find DiManno unpersuasive authority for the claimant’s contention that the fact that his assault occurred on the respondent-employer’s parking lot somehow “automatically” requires a finding that the attack and resulting injuries were therefore work-related. As the Stulginski court remarked, “[t]he fact that employees sometimes quarrel and fight while at work, does not make the injury which may result one which arises out of their employment.” Id., at 359.

Finally, the claimant has filed a Motion to Correct8 disputing the trial commissioner’s determination that, “[p]rior to the assault of July 5, 2006 the claimant and his co-worker/assailant were friends, had a good working relationship, and there were no work issues between them immediately preceding the assault on July 5, 2006.” Findings, ¶ C. Rather, the claimant has proposed corrections which essentially reiterate the claimant’s testimony at trial vis-à-vis his relationship with Triana before the assault, testimony which we must assume the trial commissioner had already considered prior to formulating his findings. As the proposed corrections would seem to reflect the claimant’s desire “to have the commissioner conform his findings to the [claimant’s] view of the facts,” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003), we find no error in the trial commissioner’s denial of the Motion to Correct. “The [claimant] cannot expect the commissioner to substitute the [claimant’s] conclusions for his own.” Id.

Having found no error, the July 24, 2007 Finding and Dismissal of the Commissioner acting for the Second District is hereby affirmed.

Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.

1 We note that two requests for postponement of oral argument were granted during the pendency of this appeal. BACK TO TEXT

2 In the claimant’s statement to the police, the claimant said that he and Triana went out to the parking lot together. See Claimant’s Exhibit A (July 13, 2006 Victim Statement of: Hernandez Romero, Gustavo). BACK TO TEXT

3 Q: Was there any time during the time that you knew him that you considered him a friend?

A: In the beginning, yes; but then after, no.

June 19, 2007 Transcript, p. 9. BACK TO TEXT

4 Q: And would Mr. Triana express anger at you for having gone to your employer?

A: Yes.

Q: What did he do?

A: I told him all the stuff that we had to do and go through things that need — in the cooler. One time he threw a bucket on the table when I was there.

Transcript, p. 11. BACK TO TEXT

5 At trial, the interpreter for the claimant stated, “[h]e [the claimant] tried to say something in Spanish but I don’t understand what he is trying to say. He said something in Greek that I didn’t understand.” Transcript, p. 11. (The employer apparently called Triana a “malaka”. Id.) BACK TO TEXT

6 Q: Is perfume a standard gift that you would give to someone that you’ve known for a month and a half?

A: It was a Christmas gift to a person — it’s a Christmas gift that I would give to any person because we used to work together.

Id., pp. 20-21. BACK TO TEXT

7 Q: And Arimus [sic] Triana had a problem with your sexual orientation?

A: A little bit.

Q: A little bit or a lot?

A: A little bit.

Id., p. 21. BACK TO TEXT

8 Sec. 31-301-4 C.G.S. (Rev. to 2005) states, in pertinent part, that “[i]f the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for . . . .” BACK TO TEXT

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