CASE NO. 5486 CRB-1-09-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 27, 2010
STANADYNE AUTOMOTIVE CORPORATION
LIBERTY MUTUAL GROUP
The claimant appeared pro se.
The respondents were represented by Michael P. McGoldrick, Esq., Siegel, O’Connor, O’Donnell & Beck, P.C., 150 Trumbull Street, Hartford, CT 06103.
This Petition for Review from the July 27, 2009 Finding and Dismissal of the Commissioner acting for the First District was heard January 29, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, O’Neil Christie, has appealed from a Finding and Dismissal of his claim for benefits. Upon review, we find that this dispute centers upon a factual determination as to whether the claimant proved that his injuries were incurred during his employment with the respondent Stanadyne Automotive. The trial commissioner was not persuaded by the claimant. As this panel cannot reconsider issues of fact, we herein affirm the trial commissioner and dismiss this appeal.
The trial commissioner reached the following findings of fact. She found that the claimant had been employed by Stanadyne for approximately two years on April 1, 2008. On that morning he punched in for work at 5:54 a.m. Prior to punching in the claimant told the Manufacturing Supervisor, Hector Torres, that his back was killing him. Mr. Torres did not ask the claimant what was wrong with his back, nor did the claimant offer an explanation to Mr. Torres. Mr. Torres directed the claimant to perform clean-up duties so he would not hurt his back further. However, the claimant began his regular work routine of driving a fork-lift truck about the work area to pick up the pans of parts that were manufactured the night before.
The claimant testified that he made about four or five stops to pick up parts when at one stop a number of parts fell out of the pan as it was being lifted. The claimant testified following company regulations he moved the fork-lift back to be parked and then walked back to pick up the spilled parts. When the claimant bent over to pick up the spilled parts he said he felt a rushing pain in his lower back and he fell to his knee and called out for a co-worker, Frank Perri.
Mr. Perri testified that the claimant was kneeling on the ground about ten feet away. He said he did not want to move the claimant as he appeared to be in great pain, so he summoned Mr. Torres. By the time Mr. Torres arrived the claimant had pulled himself into a chair and was seated. The claimant testified he had crawled to the chair and that he needed an ambulance. Mr. Torres said the claimant was in tears and in agony due to the pain. The claimant was transported via ambulance to St. Francis Hospital emergency room where he was admitted at 8:48 a.m.
The claimant was examined at St. Francis, administered an x-ray and given medication. The next day the claimant was examined by Dr. James Mazo, who diagnosed a lumbar strain and prescribed physical therapy. The claimant was referred to Connecticut Occupational Medicine Partners, LLC for physical therapy. He was released after his April 2, 2008 visit to light duty with a lifting limit of 20 pounds and no bending or squatting. This lifting limit was later raised to 30 pounds and eventually he was permitted to do limited bending and squatting.
Dr. Mazo examined the claimant again on April 25, 2008. He said it was unlikely a 2004 accident had caused the claimant any longstanding injury and discounted any contribution from the congenital pseudoarthrosis at L3-4 which had been revealed by x-rays. Dr. Mazo recommended further therapy, including a possible MRI and diagnosed “ongoing lumbar strain.” The claimant was also examined by Dr. Gerald Becker on October 31, 2008. Dr. Becker’s impression was “ongoing back and leg pain as a result of his injury of 4/01/08.” Dr. Becker also recommended an MRI. He also recommended the claimant stop smoking and using narcotic medications. Dr. Becker gave the claimant a sedentary work capacity with no lifting over 15 pounds, limited bending and changes of position every 30 minutes.
The trial commissioner also took note of the claimant’s work performance record. Prior to the alleged injury the claimant received a Performance Warning Notice for “threatening, intimidating, coercing, or interfering with fellow employees.” This notice put the claimant at greater risk of a possible layoff. The claimant also testified he had left on March 28 early due to illness and had Mr. Torres clock him out. The trial commissioner took note of various inconsistencies involving the time cards which suggested the claimant had worked a full shift that day. There was also inconsistent testimony regarding the “pans of parts.” Mr. Torres testified that after the claimant left due to his alleged injury he went back with the fork-lift and moved the “pans of parts.” Mr. Torres said he saw no evidence those parts had been moved earlier that day. Neither Mr. Perri nor Mr. Torres testified that there was a fork-lift near where the claimant said he was injured. While the claimant said he had moved the fork-lift 20 feet from the dropped parts, Mr. Torres said the fork-lift was 200 feet away parked against a wall. In addition, neither Mr. Perri nor Mr. Torres saw any parts on the floor or near the claimant when they responded to his call for help or when they returned after calling the ambulance.
Based on these subordinate facts the trial commissioner determined the claimant had not suffered a compensable injury to his back on April 1, 2008. She found the claimant not to be credible and his testimony inconsistent with the testimony of other witnesses. As a result she dismissed the claimant’s claim for benefits.
The claimant filed a timely Petition for Review, but did not file timely Reasons for Appeal. He did not file a Motion to Correct or an appellant’s brief.1 The gravamen of his appeal is based on his belief his attorney did not properly present his arguments before the trial commissioner and that the trial commissioner should have relied on the medical reports consistent with compensability.
We are hindered in considering these arguments as the claimant did not file a Motion to Correct. This requires us to accept the validity of the facts found by the trial commissioner, and limits this board to reviewing how the commissioner applied the law. Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008).
The trial commissioner concluded that the claimant was not credible and that the other witnesses who testified before her were credible. This is her prerogative as the trier of fact and we may only intercede if this conclusion was “clearly erroneous” by lacking evidence, misapplying the law or reaching an improper inference. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). The record indicates that the narrative of the claimant’s activities on the morning he claims he was injured was inconsistent with the narrative of other witnesses. The commissioner clearly found the other witnesses offered more persuasive testimony. Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008). This can be critical in cases such as this one, where there were no direct eyewitnesses to the claimant’s alleged injury, Smith v. Salamander Designs, LTD., 5205 CRB-1-07-3 (March 13, 2008), but other witnesses may either cast doubt upon or substantiate the circumstances of the alleged incident.
Recently we had an opportunity in Baker v. Hug Excavating, Inc., 5443 CRB-7-09-3 (March 5, 2010) to discuss at length the impact of a trial commissioner finding the claimant lacks credibility. We believe it governs this case.
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 v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008) 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). Baker, supra.
In Baker the claimant made a similar argument that the trial commissioner should have credited his medical evidence. We pointed out that when the commissioner was not persuaded of the veracity of the claimant’s narrative of injury that the trial commissioner could discount any and all medical evidence which was based on such a narrative, citing 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).
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.
Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.
1 The respondents’ brief cited Practice Book § 85-1 for the proposition this panel should dismiss the appeal for procedural deficiencies. We are not persuaded the respondents were prejudiced by the manner in which the claimant prosecuted this appeal, as the Reasons for Appeal did offer a cogent argument as to the nature of the errors the claimant believed had occurred at the formal hearing. Therefore pursuant to Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009), we decline to dismiss this appeal on procedural grounds. BACK TO TEXT