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Fekieta v. Drill Masters, Eldarado Tool, Inc.

CASE NO. 5458 CRB-4-09-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 6, 2010

HENRY K. FEKIETA

CLAIMANT-APPELLANT

v.

DRILL MASTERS, ELDARADO TOOL, INC.

EMPLOYER

and

PEERLESS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Erica Todd., Esq., Trotta, Trotta & Trotta, 900 Chapel Street, Twelfth Floor, P.O. Box 802, New Haven, CT 06503.

The respondents were represented by Vincent DiPalma, Esq., Law Offices of Turret & Rosenbaum, 101 Barnes Road, 3rd Floor, Wallingford, CT 06492.

This Petition for Review from the April 23, 2009 Finding and Dismissal of the Commissioner acting for the Fourth District was heard November 20, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this case seeks benefits as a result of an injury sustained during a fight with a co-worker. He asserts the injuries were sustained during the course of employment, and thus were compensable. The trial commissioner concluded to the contrary, and determined the injuries were not sustained in the course of employment. We find the commissioner’s decision was based on the factual evidence presented and the claimant’s credibility. As a result, we affirm the trial commissioner’s dismissal and dismiss this appeal.

The trial commissioner reached the following findings of fact. The claimant had worked for the respondent for approximately nine years until he was dismissed. He worked in a cubicle with a sliding panel door that adjoined the work area of Caesar Munoz. Mr. Munoz worked alongside the claimant for two and half to three years.

The claimant testified that on November 16, 2007 he was involved in a fight with Mr. Munoz who angrily accused him of breaking a radio owned by Mr. Munoz. The claimant’s version of events is as follows. He denied touching the radio when Mr. Munoz inquired and asked Mr. Munoz to leave him alone, which led Mr. Munoz to berate the claimant. The claimant then said he would tell the supervisor of the incident and tried to open the sliding door to his cubicle, and Mr. Munoz struck him in the head. The claimant did not remember what happened next, but did not report the incident to a supervisor thinking it was unimportant and had ended. Mr. Munoz returned and head-butted the claimant causing bleeding in the mouth and breaking his eyeglasses. The claimant reported this incident to Human Resources Supervisor Jill Mack, including the fact that he had a bloody mouth, headaches, and vision difficulties. The claimant testified he did not remember anything immediately after the attack, but that he was outside his cubicle after the attack. He testified he must have gotten outside the cubicle after being head-butted. He further testified the incident was observed by a witness, Thomas Jakes.

Mr. Jakes testified at the hearing and confirmed the dispute was due to Mr. Munoz’s radio. The claimant told Mr. Munoz not to touch his tools and Mr. Munoz responded by complaining about his radio. Mr. Jakes said that Munoz pushed a partition of the cubicle towards the claimant without striking him, and the claimant then pushed the partition against Mr. Munoz and pinned him against a table just outside of the cubicle. Mr. Munoz left after being pinned and returned to his work area, and the claimant followed Mr. Munoz back to Mr. Munoz’s work area. It was there that Mr. Munoz head-butted the claimant outside of the claimant’s cubicle. Mr. Jakes testified that the claimant could have proceeded to a supervisor’s office to complain as there were a number of routes he could have taken that would not have required him to pass by Mr. Munoz’s work area.

Two other eyewitnesses testified. Hector Collazo said the altercation took place in the area that Mr. Munoz worked in, and not in the claimant’s cubicle, and that Mr. Munoz was retreating at the time of the incident. Juan Sanchez, an employee of the respondent-employer for approximately nine years, testified he saw part of the altercation, saw the claimant follow Mr. Munoz, and never saw the claimant pass out.

Testimony was also submitted as to the claimant’s demeanor. Ms. Mack testified the claimant was an extremely aggressive individual who spontaneously goes after people he doesn’t like and who anger him, and has had altercations with Muslim employees. Carl Racz, the claimant’s supervisor, testified that during the time of the claimant’s employment he had to address several behavior issues with the claimant. The claimant testified he did not take behavioral warnings that were given to him seriously saying they meant nothing.

Based on this testimony the trial commissioner did not find the claimant credible but did find the other witnesses credible. He found Mr. Munoz initiated the incident when complaining about his radio, but found the claimant initiated the physical contact by pinning Mr. Munoz with the cubicle partition. He found the claimant followed Mr. Munoz back to his work area and continued the argument. He found that Mr. Munoz head-butted the claimant by Mr. Munoz’s work area, not inside the claimant’s cubicle. The claimant had the ability to complain to a supervisor without passing by Mr. Munoz’s work area, but chose not to do so thereby escalating the incident. Finding the incident occurred as a result of an event unrelated to the claimant’s employment with the respondent-employer; the trial commissioner found the claimant’s injuries did not arise within the scope of his employment.

The claimant filed a Motion to Correct. The motion focused primarily on adding testimony to the record consistent with the claimant’s belief that the respondent-employer maintained a hostile work environment. The trial commissioner denied this motion and the claimant has pursued this appeal.

The gravamen of the claimant’s appeal is based on his belief that the trial commissioner improperly applied the precedent in Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355 (1938). The claimant believes that had the trial commissioner properly applied the law and considered the evidence he would have concluded that the injury arose out of and occurred in the course of his employment.

We believe the trial commissioner did properly apply the legal test in Stulginski. The difficulty the claimant has on appeal is that in order to find the injury compensable the trial commissioner would need to resolve the factual questions as to the circumstances of the altercation in the claimant’s favor. In his brief the claimant makes two assertions which are critical to establishing compensability. He asserts the proximate cause of the assault was due to the claimant’s request of Munoz to allow the claimant to finish his work. Appellant’s Brief, pp. 10-11. He further asserts he did not act willfully when he pushed the door back and his reaction was in the heat of the moment. Appellant’s Brief, pp. 13-14. As an appellate panel, we are not in a position to intrude into the fact-finding duties of the trier of fact. The claimant filed a Motion to Correct to establish this theory of compensability. The motion was denied by the trial commissioner. When a trial commissioner denies such a motion, we may properly infer that the commissioner did not find the evidence submitted probative or credible. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). On appeal, our inquiry is limited to ascertaining if this decision was arbitrary or capricious. Id.

The trial commissioner specifically found that statements of the claimant were not credible. We cannot revisit a trial commissioner’s determination of credibility when witnesses present testimony for his consideration. Burton v. Mottolese, 267 Conn. 1, 40 (2003). The trial commissioner, on the other hand, credited statements of other witnesses who established the claimant left his work area, chose willfully to prolong the dispute with Mr. Munoz, and ultimately provoked an assault. As Stulginski points out “[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.

We find the facts and legal circumstances virtually identical to Ryker v. Bethany, 4780 CRB-3-04-2 (February 16, 2005), aff’d, 97 Conn. App. 304 (2006), cert. denied, 280 Conn. 932 (2006). In Ryker the claimant got in a dispute with a co-worker who had reported him to a supervisor for wasting time with a visitor by holding a conversation unrelated to work. The argument resulted in the co-worker pushing the claimant to the ground. The trial commissioner found this injury was noncompensable. We affirmed this dismissal. The Appellate Court upheld our decision. The reasoning is applicable herein.

Nonetheless, the court has held that an injury suffered in such a fight will be considered to have arisen out of the employment only “when the employee is assaulted while he is defending his employer, or his employer’s property, or his employer’s interests, or when the assault was incidental to some duty of his employment . . . .” (Emphasis added; internal quotation marks omitted.) Jacquemin v. Turner & Seymour Mfg. Co., supra, 384. Otherwise, by participating in a fight, an employee ‘‘has voluntarily departed from the duties of his employment and embarked upon an enterprise of his own not contemplated by the terms of his employment. His injuries result from his own act and from a condition brought by himself and not incident to his employment.’’ Stulginski v. Waterbury Rolling Mills Co., supra, 362.

Ryker, supra at 310.

We cannot find support for the position that as a matter of law we are obligated to reverse the trial commissioner in the present case. We find the fact pattern in Ryker and the legal analysis controlling in this matter. The trier of fact in Ryker concluded the claimant in that matter had precipitated the physical confrontation. It is apparent the trial commissioner in the present case reached the same conclusion, and that the claimant “had embarked upon an enterprise of his own not contemplated by the terms of his employment.” Stulginski, supra at 362.1

This conclusion is a finding of fact, and as such we can intervene only if the conclusion is unsupported by the evidence on the record. The trial commissioner cited testimony on the record supportive of his conclusion. Having reviewed the testimony, we cannot find the commissioner’s conclusions unreasonable. While the claimant’s Motion to Correct sought to cause the trial commissioner to rely on testimony supportive of compensability, we find no error in the trial commissioner’s denial of this motion. See Vitti, supra, and Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003).

The denial of the Motion to Correct is dispositive of the claimant’s argument that the allegedly hostile work environment at the respondent’s workplace caused this assault to be “incidental to employment.” This issue is a factual issue where the claimant failed in his burden of proof. We note the trial commissioner found the testimony of Mr. Racz credible in that he had addressed prior behavior issues with the claimant. The trial commissioner also noted the claimant had a dismissive attitude as to such warnings. Finding, ¶ 20.2 Therefore, we do not find that claimant established that the respondent acquiesced to the conduct which caused the claimant’s injuries and as a result, the claimant’s reliance on McNamara v. Hamden, 176 Conn. 547 (1979) is unavailing.3

Whether an injury due to a workplace assault is a compensable injury is a prototypical question of fact. The trial commissioner reached factual conclusions adverse to the claimant. We cannot second guess such decisions. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). The claimant has the burden of establishing compensability, McNamara, supra, and failed in part because the trial commissioner did not find him credible. Unless the claimant is a credible witness they cannot prevail before this Commission. See Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008) and Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008).

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.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 We note that even were the claimant blameless in this incident, that an assault by a co-worker which was due to causes unrelated to his employment would not be compensable. Hernandez v. Pizzaria 101 and Family, 5254 CRB-2-07-7 (December 8, 2008). BACK TO TEXT

2 The claimant argues that some of the incidents on the record were too remote in time to be relied upon by the trial commissioner, and this constitutes error. Appellant’s Brief, pp. 14-15. This argument is eviscerated, however, as the claimant chose to also rely on activities from the same time period in trying to establish his claim of a “hostile work environment.” Appellant’s Brief, pp. 11-12. In any event, “[t]he commissioner is not bound by common law or statutory rules of evidence or procedure. He may make inquiry in the manner best calculated to do so to ascertain the rights of the parties. . . .” Delgaizo v. Veeder-Root, Inc., 133 Conn. 664, 667-668 (1947); Parisi v. Yale University, 89 Conn. App. 716, 723 (2005); Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007). BACK TO TEXT

3 We also distinguish this matter from Alling v. Davis & Geck, 4483 CRB-7-02-1 (December 20, 2002) relied on by the claimant. In Alling, the trial commissioner was persuaded by the claimant that the cause of the assault was a dispute over malfunctioning equipment. In the present case, the trial commissioner concluded the cause of the dispute was a personal quarrel between co-workers unrelated to the respondent’s business. BACK TO TEXT

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Page last revised: April 19, 2010

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