State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Darby v. Hart Plumbing Company

CASE NO. 5325 CRB-2-08-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 4, 2009

REGINALD DARBY

CLAIMANT-APPELLANT

v.

HART PLUMBING COMPANY

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Christopher G. Santarsiero, Esq., 100 Grand Street, Suite 2C, Waterbury, CT 06702.

The respondents were represented by Laurence McLoughlin, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

This Petition for Review from the February 21, 2008 Finding and Dismissal of the Commissioner acting for the Fifth District was heard September 26, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in the present matter is appealing the denial of his claim for benefits for a back injury. While the claimant asserts his back injury was sustained while employed by the respondent, the trial commissioner was not persuaded that the claimant’s injury occurred at work. We find the trial commissioner’s decision was based primarily on finding the claimant was not credible. Since an appellate body cannot disturb a fact-finder’s credibility assessment when appropriately grounded, we affirm the Finding and Dismissal and dismiss this appeal.

The trial commissioner found the following facts. On August 11, 2005 the claimant was working as an apprentice plumber for the respondent on a construction project underway at the UConn campus in Storrs. The claimant said that at 7:30 am that day he was lifting an air conditioning motor that weighed about 150 pounds down an attic ladder. The claimant testified he was injured when he dropped the unit, and that he reported the incident to his supervisor, Paul Callahan. Mr. Callahan told the claimant to go to the “gang box” area and await a copy of an incident report. While at the gang box area, the claimant was pressed into service to clean up the area for a new crew of workers. Before this was completed, a group of sheet rock installers arrived and commenced working while the claimant was still removing items.

The sheet rock installers began cutting up material with an electric saw and propelled a large cloud of dust into the air. The claimant asked them to wait for a minute so he could complete his work, but they continued sawing sheet rock. The claimant then unplugged the saw. A verbal dispute ensued and foremen were summoned to the job site. The claimant denies he was holding a sheetrock knife at the time and said he was holding an “s-clip,” which is used for duct work. The claimant went home shortly after this incident. He testified that he was picked up at the work site by his wife at the time. He further testified he tried to see a doctor that afternoon about his back and neck. No incident report for the injury was received from Mr. Callahan and none was filled out. Later that afternoon, the claimant spoke to the respondent’s President, Bob Gibbons, who told the claimant he had been terminated from work since the sheet rock crew had advised the foreman, Johnnie Doris, that the claimant had been the aggressor in the altercation.

The claimant initially treated with Dr. Kenneth A. Litwin, a family doctor. Dr. Litwin referred him to Dr. Dennis Ogiela, an orthopedist. The claimant asserts temporary total disability from the August 11, 2005 incident.

The respondents called a number of witnesses. Donald Weeks testified that he was working along with the claimant on the morning of August 11, 2005 on the “B” vent in the basement of Unit “A” and they were securing gas lines to hot water heaters. He said that they had to move to another building since they ran out of clips. He said the claimant had not been using a ladder that morning. He also said it was confusing to determine what building one was working in due to the configuration of the complex. He believed they were in the “B” building when a foreman, Danny Yeske, directed them to clean out the gang room. Mr. Weeks confirmed that a dispute had been triggered by the excessive cloud of dust generated by the sheet rock crew’s saw and that the claimant had pulled the plug on the saw. Mr. Weeks also said that he had encouraged the claimant to leave the room. He testified that Mr. Callahan had been the one directing the claimant to go home. He also testified that the claimant never mentioned to him that day that he had injured himself and he never saw any outward display of injury expressed by the claimant.

The respondents also had Daniel Yeske testify. Mr. Yeske corroborated Mr. Weeks’ testimony in stating that he was working with Don Weeks, the claimant and another man named James on the morning of the claimant’s alleged injury. He also testified that he believed they had worked only in Buildings “A” and “B” that morning and that he had been working with Mr. Weeks and the claimant that morning. Mr. Yeske also confirmed the account of the altercation with the sheet rock crew; although he believed that they had been “looking for trouble.” He testified that when the claimant picked up a sheet rock saw the altercation ended, but the claimant was sent home afterward. During the period that Mr. Yeske was working with the claimant, the claimant never mentioned that he injured his back and he did not see any display of a physical injury by the claimant.

The respondents also called Paul Callahan to testify on their behalf. Mr. Callahan had only worked with the claimant for a few months. He confirmed the testimony of other witnesses who contravened the claimant’s testimony that work on the UConn job began at six a.m.; it was actually impossible to start before seven. He did testify that the claimant had not been working in Building “A” that morning; rather he had been working in Buildings “B” and “C;” but there had been a lot of confusion as to the name of the buildings. Mr. Callahan denies that the claimant approached him on August 11, 2005 and told him that he injured his back and neck. He also denies that he told Mr. Darby that he would fill out an incident report or that he should go seek medical treatment. After the incident with the sheet rock crew, Mr. Callahan stated that the claimant “was a bit hot.” He told the claimant to wait in the parking lot while Mr. Callahan contacted the supervisor. The supervisor advised Mr. Callahan to tell the claimant to go home. According to Mr. Callahan, the claimant did not mention to him that he had injured his neck or back.

The respondents finally called Bob Gibbons, president of the firm. Mr. Gibbons testified that he spoke with the claimant on the day of the alleged injury and two times the day after but that the claimant never mentioned having injured his neck or back on the job in any of the three conversations, nor had the claimant’s wife mentioned an injury. The respondent’s Human Resource Director, Beth Ann Bonetti, was also called as a witness, as an issue was raised about the claimant’s time card. She testified that there was a lot of confusion by the men working the UConn job site as to which building they were working in at any given time, and often they would list time for only one building for the entire day. She noted that on the day of the alleged incident Mr. Weeks and Mr. Yeske’s time cards had them working in Building “B;” while Mr. Callahan signed off on the claimant’s time card that he was working in Building “D.” Mr. Gibbons testified that that was inaccurate and that the claimant would not have been working in Building “D” that morning.

Based on these subordinate facts, the trial commissioner concluded that notwithstanding what had been reported on his time card the weight of the evidence was the claimant was not working in Building “D” on the day of the alleged incident. She concluded the claimant was working alongside Mr. Weeks and Mr. Yeske and supervised by Mr. Callahan. She concluded the claimant’s work that morning did not involve the use of ladders or the installation of air conditioning motors. She found that there was no corroborating evidence to the claimant’s testimony that he had been asked to move an air conditioning motor. The trial commissioner cited Paul Callahan’s testimony that he had not sent the claimant to the gang room so as to prepare an injury report form; and cited testimony that the claimant had not reported the injury to Mr. Weeks, nor exhibited any outward signs of injury to any of his co-workers. Based on these conclusions, the commissioner ordered the claim dismissed.

The claimant filed a Motion to Correct containing numerous corrections; most centered upon alleged misstatements in the Finding and Dismissal as to the claimant’s job duties and on the veracity of the time cards submitted as evidence. The trial commissioner denied these corrections in their entirety and the claimant pursued this appeal.

In considering the claimant’s legal arguments on appeal, we are struck by one point that claimant’s counsel did not address. Notwithstanding the various arguments as to the job duties of the claimant and the accuracy of the respondent’s time cards, the claimant still needed to prove one specific point to the trial commissioner’s satisfaction. He needed to prove, not that his job duties would have permitted him to lift an air conditioning motor, or that he was on a work site where he could have lifted an air conditioning motor. He needed to prove to the trial commissioner’s satisfaction that he indeed did lift such a motor while in the employ of the respondents; as he asserted that was the mechanism of his back and neck injury. The only evidence in the record supporting the claimant on this paramount issue is his own uncorroborated testimony.1

Last year we dealt with a somewhat similar case, Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008). In Toroveci the claimant asserted he had been hurt on the job and proved to the trial commissioner’s satisfaction that numerous witnesses for the respondent were not worthy of belief. Nonetheless, the trial commissioner denied the claim as he did not accept the claimant’s version of events, either. We upheld this dismissal, citing Warren v. Federal Express Corporation, 4163 CRB-2-99-12 (February 27, 2001).

. . . the parties do not start from a precisely equal position, because the claimant has the burden of proving that he has sustained a compensable injury, that he has a disability, or (as in this case) that his acknowledged disability was caused by an accepted compensable injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000). To illustrate the effect of this burden, if a trial commissioner chose to believe none of the witnesses in a given case, and found all of the documentary evidence to be untrustworthy, the employer would essentially prevail by default.

Id.

In the present case, the trial commissioner did credit the testimony of the respondent’s witnesses, all of whom testified that they had no knowledge the claimant had injured himself on August 11, 2005. February 28, 2007 Transcript, p. 94; May 23, 2007 Transcript, p. 11; May 23, 2007 Transcript, p. 25. This is akin to the trial commissioner’s rationale in Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008) who found the claimant’s testimony “was specifically refuted by witnesses the trial commissioner did find credible.” Id.2

To the extent the claimant asserts there were inconsistencies in the respondent’s evidence, it is the duty of the trial commissioner to weigh such inconsistencies against the claimant’s narrative and the credibility the commissioner attaches thereto. We pointed out this role of the trial commissioner in Smith v. Salamander Designs, LTD, 5205 CRB-1-07-3 (March 13, 2008).

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).

Id.

We respectfully disagree with the assertion in claimant’s brief that the conclusions of the trial commissioner were inconsistent with the “reasonable man” standard. Claimant’s Brief, p. 2-4. The respondent’s witnesses were consistent in that all denied they had knowledge of the claimant’s injury. Even had the trial commissioner agreed with the claimant and found these witnesses evasive and untruthful, such a determination would still leave the claimant to his proof. Toroveci, supra.

Finally, we address the various alleged misstatements of fact in the Finding and Dismissal concerning the claimant’s job duties (i.e. whether they would have encompassed moving air conditioning machinery) or whether the claimant’s wife spoke to Mr. Gibbons following the incident. We find that even had the trial commissioner granted corrections on these elements of the record that they would not have compelled a different outcome in this case. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). This constitutes at best harmless error. Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007).

The claimant failed in his burden of persuasion before the trial commissioner. Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006). We can only intercede on appeal when we determine the trial commissioner reached a finding without probative evidence to support his or her conclusion. Strajkowski v. Pratt & Whitney, 5251 CRB-1-07-7 (August 27, 2008). We cannot revisit a determination as to what evidence the trial commissioner concluded was more persuasive and probative. Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006). Since we must extend “every reasonable presumption in favor of the action” of the trial commissioner Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007); “we conclude the trial commissioner’s determination was a reasonable exercise of [her] discretion.” Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008). We therefore, affirm the Finding and Dismissal and dismiss this appeal.

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

1 While the claimant testified that a co-worker did witness the event which caused his injury, February 28, 2007 Transcript, p. 18, he did not present any witness confirming this narrative at the formal hearing. We have previously upheld a trial commissioner who similarly discounted such uncorroborated testimony. Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007). We may infer herein that while the trial commissioner specifically did not state the claimant lacked credibility that as a de facto matter the claimant’s narrative was not credited by the trial commissioner. Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008). BACK TO TEXT

2 While the claimant testified that he informed Paul Callahan of his injury, February 28, 2007 Transcript, p. 19, Mr. Callahan denied having been informed of this alleged injury. May 23, 2007 Transcript, p. 25. BACK TO TEXT

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