State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Baker v. Hug Excavating, Inc.

CASE NO. 5443 CRB-7-09-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 5, 2010

DEAN BAKER

CLAIMANT-APPELLANT

v.

HUG EXCAVATING, INC.

EMPLOYER

and

AIG CLAIM SERVICES

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by B.T. Canty, Esq., Law Office of B.T. Canty, P.C., 197 East Avenue, Norwalk, CT 06855.

The respondents were represented by Colin J. Hoddinott, Esq., Law Offices of Jack V. Genovese, II, 200 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the March 2, 2009 Finding and Dismissal of the Commissioner acting for the Seventh District was heard August 28, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals from the dismissal of his claim that he suffered a compensable injury while employed by the respondent. The trial commissioner in this matter did not find the claimant a credible witness, and indeed, did not find the respondent’s witnesses credible. We find that pursuant to the precedent in Toroveci v. Globe Tool & Metal Stamping Co., Inc. 5253 CRB-6-07-7 (July 22, 2008), when neither party before the tribunal is credible the claim must be dismissed. Therefore, we affirm the Finding and Dismissal and dismiss this appeal.

The trial commissioner reached the following findings in his Finding and Dismissal of March 2, 2009. He found the claimant testified to having been employed by the respondent as a truck driver for approximately three years. The claimant testified he was paid $1,000 for a five day week and $300 to work on Saturday. The respondent testified he was paid $200 for Saturday work. The claimant testified that he had been injured at some unspecified date in early May 2007 while working. He said he was in Ridgefield and was climbing into his truck when a strap holding the top step to the truck broke. This left him hanging onto the steering wheel with his right hand and ending up backward to the truck without completely hitting the ground. The claimant testified that following this incident he tied the step to the truck with yellow rope and took the truck and a trailer to the Tokeneke Club in Darien, where he continued work on an adjoining piece of property to the beach club. The claimant said he did not report the incident immediately, but did inform the respondent the next day of the broken strap. The claimant initially believed he had only suffered a pulled leg muscle.

Following this incident the claimant obtained a prescription on May 16, 2007 for Voltarin for the leg muscle pain from his doctor, Michael Cavaliere of Bridgeport. Dr. Cavaliere wrote on July 10, 2008 the claimant received the medication on May 16, 2007 to deal with leg pain resulting from falling out of a truck. The claimant continued to work after this incident until August 6 or 7 when he was unable to sit in the excavator any more. At that point the claimant left work, although the respondents paid him through the end of the week. He was referred at that point to Dr. Wilchinsky by Dr. Cavaliere and was given pain medication and anti-inflammatory medication, after which he underwent an MRI examination. On August 7, 2007 Dr. Wilchinsky stated that the claimant had a lower back injury 15 years earlier and surgery had been contemplated but not done because of the claimant’s improvement, but now the claimant had difficulty sitting and standing. On October 11, 2007 Dr. Wilchinsky opined the claimant’s pain began after a work-related injury in May 2007. The doctor also said in a September 16, 2008 letter to counsel that the claimant has been unable to work his regular job duties because of the work-related injury on May 10, 2007.

The claimant underwent L5-S1 fusion surgery performed by Dr. Michael Opalak and Dr. Gerald Girasole on July 28, 2008. Dr. Opalak stated in January 2009 that the claimant had not been released back to work following the surgery and estimated a release date of April 2009. The claimant also presented an opinion from a chiropractor, Dr. James Allen, who causally relates the injury to the accident of May 10, 2007.

The commissioner noted disputed evidence concerning the circumstances of the alleged injury. The claimant testified that he believed he was injured on May 10, 2007 because he usually tries to move equipment on Thursdays rather than Fridays and because Dr. Wilchinsky’s office needed to place a specific date of injury on a workers’ compensation form. The claimant however, filed for unemployment benefits after the employer-respondent laid him off. The claimant said he had been temporarily disabled from August 2007 through September 3, 2008, conceding that he lied to unemployment about his work capacity in order to obtain benefits. The respondent-employer testified that while the claimant told them in mid 2007 of his back pain the claimant referred it to an old injury, and they were unaware until October 2007 that the claimant believed his back problem occurred when the step on the truck broke. The respondent-employer also testified that he discovered the step broke in March 2007 when he saw the yellow rope tied to the fuel tank and had the step fixed shortly thereafter, stating a check had been written at the time for the repair. The trial commissioner also found the respondent had completed its work at the Tokeneke Club in April 2007.

The commissioner also noted that a witness, James Tozlosky testified he repaired the broken strap on the truck after being called to the Tokeneke Club by the claimant, a friend of his, and was paid by check dated April 25, 2007. He claimed he repaired the truck on May 12, 2007. He did not know why he was paid to repair the truck in April if the accident occurred in May. He also testified the truck’s tires had flood marks on them when he repaired the truck and the flood occurred in April 2007.

The respondent testified that when the claimant was laid off in August in 2007 it was because he was unable to work, not because of economic reasons. The respondent further testified that he saw the yellow rope on the truck, was angry about it being broken, but never heard how the problem occurred, whether anyone was injured, and never asked. The respondent made no inquiry with the claimant’s co-workers as to whether the claimant was hurt on the job.

Based on this evidence the trial commissioner found neither the claimant nor the respondent credible. The trial commissioner found Mr. Tozlosky credible only on the issue as to the truck having flood marks on the tires in April 2007. The commissioner concluded the strap to the truck step broke in April 2007, earlier than the purported May 10, 2007 date of injury. He concluded the truck was repaired after being used at the Tokeneke Club, and that work was performed at the club between April 7 and April 21, 2007. He found the truck repair was paid for on April 25, 2007. The commissioner found there is no contemporaneous account of the injury nor a contemporaneous medical report. He further found the claimant told the respondent-employer in mid-July 2007 that he had back pain and referred to it as an old injury. The commissioner discounted the medical evidence presented by the claimant as based on the claimant’s history of the incident.

Since the claimant failed to meet his burden of proof, the trial commissioner found the claimant’s back injury was not related to the broken truck step strap. The commissioner determined the injury was not compensable and dismissed the claim. The claimant filed a Motion to Correct, which was denied in its entirety. The claimant has now pursued this appeal.

Prior to considering the merits of this appeal we must address various motions advanced by the litigants. The claimant has filed a Motion to Submit Additional Evidence. The additional evidence is a statement from a co-worker, Alfredo Walfre. As the Appellate Court pointed out in Mankus v. Mankus, 107 Conn. App. 585 (2008), when a litigant seeks pursuant to Admin. Reg. § 31-301-9 to present previously unconsidered evidence directly to this panel the moving party must establish good cause.

Thus, in order to request the board to review additional evidence, the movant must include in the motion 1) the nature of the evidence, (2) the basis of the claim that the evidence is material and (3) the reason why it was not presented to the commissioner.

Id., at 596.

The claimant alleges that this evidence was not presented at the formal hearing because the claimant “was unable to contact” Mr. Walfre. We are not persuaded this evidence could not have been obtained prior to the record closing before the trial commissioner. We believe admission of this evidence at this juncture would be “… an effort to try the case in an inappropriate piecemeal fashion. Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001).” Grant v. Siemens Westinghouse Power Co., 5292 CRB-4-07-11 (October 28, 2008). We therefore deny the Motion to submit Additional Evidence.

The respondents have filed a Motion to Dismiss alleging the claimant’s failure to file a timely brief should cause this panel to dismiss the appeal. Notwithstanding the respondents’ claim they were prejudiced by the delay, we find that the appellees were sufficiently apprised of the issues before this panel well in advance of the hearing, and were not impaired in their ability to present a defense to the appeal. For the reasons stated in Roussel v. Village Gate of Farmington, 4918 CRB-6-05-2 (February 28, 2006), we deny the Motion to Dismiss.

We now turn to the substance of the claimant’s appeal. He argues that he did proffer a contemporaneous medical report for the alleged date of injury. He also states that the medical evidence did not support the commissioner’s apparent belief that his back injury was pre-existing. He also states the trial commissioner did not properly credit statements by Mr. Tozlosky supportive of the claimant’s position regarding the truck repair. Counsel for the claimant has asked for a remand for a trial de novo, asserting the evidence did not support the Finding and Dismissal and arguing that a new fact finder should now consider the evidence, including the newly obtained evidence from Mr. Walfre.

We have already ruled against the motion to consider additional evidence in this matter. The larger problem herein is that the trial commissioner made a finding that the claimant was not credible. This is not an issue where an appellate panel can review the record and conclude the commissioner reached an error of law. As we held in Toroveci, supra,

The trial commissioner concluded that the claimant failed to prove his case as a result of his testimony not being credible or persuasive. When the issue of credibility governs a trial commissioner’s decision, our appellate power of review is limited even further.
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).

We further pointed out in Toroveci, when the trial commissioner finds neither the claimant nor the respondent offered credible testimony, the claim must be dismissed. As noted, the trial commissioner in this matter reached exactly those conclusions. We believe we are bound by precedent in considering this issue.

We considered this same issue in Warren v. Federal Express Corporation, 4163 CRB-2-99-12 (February 27, 2001), where we held,

. . . 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. Toroveci, supra.

In the present case the claimant had the burden of proving that his back injury was caused by his employment. The contemporaneous medical record the claimant relies on to prove compensability asserts the claimant suffered “leg pain after falling off a truck.” Claimant’s Exhibit A. The medical note does not reference the claimant’s back, nor did it reference who owned the truck in which the alleged fall occurred. We may properly infer the trial commissioner did not find this document was probative evidence as to the causation of the claimant’s back herniation.1 If the trial commissioner believed this medical evidence was derived from a patient history which lacked credibility, he had the right to disregard this evidence. See Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008). This standard would also justify the trial commissioner’s decision not to rely on the other medical evidence supportive of compensability.

This standard also governs the consideration of Mr. Tozlosky’s testimony. The trial commissioner found this witness credible on only one issue. We may properly find the commissioner did not find the balance of his testimony credible. Since the claimant’s testimony and that of Mr. Tozlosky were inconsistent with the dates in which the claimant was working at the Tokeneke Club, (Respondent’s Exhibit ¶ 5; Finding ¶ u) where the claimant allegedly went after he was injured, we cannot find this conclusion was unreasonable.

The claimant had the burden of establishing his injury was the result of an incident sustained while employed by the respondent. The trial commissioner did not find his testimony on this point credible. We cannot, as an appellate panel, revisit the credibility determinations of the trial commissioner. We find no error, and herein affirm the Finding and Dismissal. The appeal is dismissed.2

Commissioners Peter C. Mlynarczyk and Stephen B. Delaney concur in this opinion.

1 We also note that the trial commissioner concluded that the alleged broken truck strap had occurred in mid-April 2007 and was repaired well prior to May 10, 2007. If the claimant’s assertion of pain occurred weeks after the injury caused by a broken truck strap, the medical report was not contemporaneous. BACK TO TEXT

2 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the claimant’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003) particularly as the claimant failed to convince the trial commissioner he was a credible witness worthy of belief. Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008). BACK TO TEXT

Workers’ Compensation Commission

Page last revised: April 16, 2010

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