State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Gioia v. United Parcel Service

CASE NO. 5488 CRB-3-09-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 9, 2010

JAMES P. GIOIA

CLAIMANT-APPELLANT

v.

UNITED PARCEL SERVICE

EMPLOYER

and

LIBERTY MUTUAL INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondents were represented by Diane D. Duhamel, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the July 27, 2009 Finding and Denial of the Commissioner acting for the Fourth District was heard February 26, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal is from the Finding and Denial of the claimant’s bid to find compensable an injury which is alleged to have occurred while in the employ of United Parcel Service. In order to prevail at a contested hearing the claimant must be found to be credible. Additionally, in order to properly prosecute an appeal of an adverse decision from a trial commissioner an appellant must present to this tribunal a cogent and timely explanation of the alleged errors. Neither occurred in the instant matter. We therefore, affirm the Finding and Denial and dismiss this appeal.

The trial commissioner reached the following findings of fact at the conclusion of a Formal Hearing which commenced July 1, 2008 with the record closing on March 31, 2009. The claimant, James Gioia, was employed by UPS as a seasonal employee from November 27, 2006 until December 29, 2006. He was employed by UPS as a driver’s helper and had worked previously for UPS as a seasonal employee. The claimant said that on December 15, 2006 he injured his lower back while driving in an “older UPS truck.” The claimant said the injury occurred between 5:00 p.m. and 6:30 p.m. when the truck was driving on rough roads in Madison and the truck shook violently when it hit a number of large potholes. The claimant said he had hit his head on the truck door “at least five or six times.” The claimant identified the driver at the time as “Josh” but could not identify the name of the road where the incident occurred.

The claimant testified that he and Josh finished their route that day. He said he told Josh he was very stiff and sore in his back. He testified to being in “horrible pain” during the day on Sunday, December 17, 2006, but was able to work his regular shift on Monday, December 18, 2006. He testified that he had spoken that day with a supervisor at UPS named “Jen” and had described the prior incident and the resulting pain to her. The claimant said he worked the remainder of the week with a driver named “Hundley” but later thought it might have been a driver named Keith Volpe. The claimant said he was in horrible pain all week and could not enter and exit the truck readily. The claimant next related the incident to his superiors on January 5, 2007 when he was returning his uniform. He said he spoke again with “Jen” who called the insurance company. He also spoke to an individual named Bob Kimball, the facility manager, whom the claimant said was very skeptical of the incident.

The claimant did not seek medical treatment for the injury until January 2, 2007 when he presented at the emergency room of the Hospital of St. Raphael. The report noted back pain for which the claimant was prescribed Motrin, Flexeril and Percocet. The claimant was referred to an orthopedic surgeon, Dr. John Beiner. Dr. Beiner’s report did indicate the claimant had significant pain after the pothole incident but also noted an extensive prior history of a disc herniation at L4-5 which was diagnosed while the claimant lived in Florida. He noted the claimant had treated with a chiropractor. Dr. Beiner’s medical report stated the claimant had been in bed for a number of days after the incident, although the claimant testified at the formal hearing that he had continued to work. Dr. Beiner diagnosed “low back strain” and “possible radiculopathy.” A March 5, 2007 MRI disclosed the claimant had a “[p]osterior left lateral disc protrusion at L5-S1 with small central protrusion also noted cephalad at the L4-5 level.” Dr. Beiner examined the claimant again on March 22, 2007 and reported the claimant sought to have the office notes from the initial January 5, 2007 visit changed. Dr. Beiner did relate the claimant’s lumbar spine condition to the alleged incident and recommended epidural steroid injections or a possible “lumbar micro-discectomy” surgical procedure.

The claimant worked at two jobs following UPS. He worked as a “crown and bridge waxer” for a dental lab and said he had been fired for not calling out from work, an incident which he associated with being in extreme pain from “reaggravating his back” moving family belongings. He also worked at Frank Pepe’s restaurant for about a month. The trial commissioner noted that while the claimant testified he had difficulty with tasks of daily living there were no outward signs of discomfort throughout his testimony or over the three days of formal hearings. The claimant was a full time student in aviation maintenance during the period in which the formal hearing was held. He testified to living in Florida from 1993 to 2004 and treating with a local chiropractor from 1995 to 2001. He said he was aware he had a bulging disc, but did not believe it was herniated.

The respondents presented a different narrative. They had prepared the First Report of Injury on March 9, 2007 for the claimant. Jennifer Goodreau, a human resource representative for the respondent, testified she had hired the claimant. She said that on December 19 and 20 the claimant had gotten angry about his hours, but had not told her he was injured. She advised a supervisor, Eric Johnson, as to the issue. She was not told about the alleged injury until on or about January 3, 2007 when the claimant dropped off his uniform. She said at that time she advised the center manager, Bob Kimball.

The UPS driver who worked with the claimant on December 15, 2006, Joshua H. Albrecht, testified at the formal hearing. Mr. Albrecht said there were no gravel or unpaved roads where they were driving that evening in Madison, and he did not recall driving over a number of large potholes. Another UPS driver, Charles D. Hudnall, testified that he had worked with the claimant the week of the alleged incident and did not see any evidence the claimant was in pain. Mr. Hudnall was present when the claimant complained to Ms. Goodreau about his hours. Eric Johnson, the workplace planning manager for the UPS garage, testified that he spoke with the claimant in December 2006. The claimant was angry over his hours and Johnson terminated him over the phone. Mr. Johnson was never advised by the claimant he was hurt. In addition, a private investigator for the Respondents, Joseph Ciandella, presented a surveillance tape shot at various times which depicted the claimant walking and entering and exiting motor vehicles without any sign of pain or discomfort.

Based on these facts the trial commissioner found that the claimant had an extensive prior history of lumbar spine problems and did not treat for the alleged injury until days after it was said to have occurred. He also found that at the time of the alleged incident the claimant had a dispute with his employer. He also found that the driver of the UPS truck denied that the accident had occurred. Therefore, he found the claimant’s testimony not to be credible due to its numerous inconsistencies. This lack of credibility rendered the medical opinions of Dr. Beiner unreliable. The trial commissioner found the respondents’ witnesses to be credible and persuasive. Therefore, the trial commissioner found the claimant’s lower back condition was not due to an alleged pothole incident of December 15, 2006 and the claimant failed in his burden of proof that he sustained a compensable injury.

The claimant, acting pro se, filed a timely Notice of Appeal. He did not file a Motion to Correct, Reasons of Appeal, or an Appellant’s Brief. On December 22, 2009, the respondent filed a Motion to Dismiss the appeal for failure to prosecute the appeal in accordance with Practice Book § 85-1. Nonetheless, as of the date of the hearing before this tribunal the claimant had yet to submit any further documentation outlining what were his claims of error.

The respondents assert they are prejudiced by the deficiencies in the claimant’s appeal, noting that the claimant failed to submit any written rationale for his appeal either to the Commission or to the respondents. This complete absence of documentation goes beyond the deficiencies in the claimant’s appeal in Marino v. Cenveo/Craftman Litho, Inc., 5448 CRB-5-09-3 (March 16, 2010) which we found were sufficiently material to warrant dismissal of the appeal. We cannot permit our appeals to become “trial by ambush.”

Therefore, we agree with the respondents and find our precedent in Rurak v. Sweet Life Inc., 4630 CRB-1-03-2 (February 6, 2004) and Bernier v. American Ref-Fuel Company of Southeast Connecticut, 4876 CRB-2-04-10 (December 23, 2005) governs this situation and mandates dismissal. As we explained in Claros v. Keystone Pipeline Services, Inc., 5399 CRB-1-08-11 (October 28, 2009) “[w]hile we acknowledge the difficulties pro se claimants may have in advancing an appellate argument, and generally extend considerable leeway to such litigants, there must still be a reasonable effort to comply with the rules to enable this panel to take action.” In the present appeal, we find the claimant made no effort to comply with the rules and therefore acted in a manner prejudicial to the opposing party.

While we believe the procedural deficiencies in the claimant’s appeal were so material as to warrant a dismissal, were we to have considered the merits of the claimant’s appeal we would have affirmed the trial commissioner’s decision. The trial commissioner did not find the claimant a credible witness and this is an issue which we cannot intercede as an appellate body. In such circumstances the precedent in Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008) mandates that the claim be dismissed even if the respondent were not found to be credible. As we held in Toroveci,

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).

The circumstances herein are that the trial commissioner did not believe the claimant and presented a number of reasonable grounds for finding his testimony incredulous.1 We cannot find this matter dissimilar from a host of similar cases where the claimant’s testimony was not believed and the claim was dismissed. See Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007), Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008), Smith v. Salamander Designs, LTD., 5205 CRB-1-07-3 (March 13, 2008), Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010) and Baker v. Hug Excavating, Inc., 5443 CRB-7-09-3 (March 5, 2010).

The claimant presented an oral argument before this panel regarding what he regarded as errors in the Finding and Denial. He complained that his attorney failed to procure the testimony of various witnesses, in particular Mr. Kimball. We do not find given the circumstances their testimony would have had a material impact on the outcome of the proceedings. He also disputed the trial commissioner’s reliance on the surveillance tape. This issue goes to the weight of the evidence and will not be disturbed on appeal. Williams v. Bantam Supply Co. Inc., 5132 CRB-5-06-9 (August 30, 2007). He also attacked the conduct of the trial commissioner as “negligent and incompetent” for not being sufficiently supportive of his claim. We have previously had opportunity to address this sort of averment in Flood v. Travelers Property & Casualty, 5267 CRB-1-07-8 (December 8, 2008), although we note that in Flood, the claimant was not represented by counsel at the formal hearing, wherein Mr. Gioia was represented by counsel at his formal hearing. As we stated in Flood,

Finally, we note that the claimant has expressed dissatisfaction with the failure of the trial commissioner to render her competent guidance during her prosecution of this claim, complaining that, “Commissioner Delaney has provided poor advice to the claimant on more than one occasion during these proceedings.” Appellant’s Brief, p. 7. Unfortunately, the claimant’s remarks in this regard merely serve to betray her profound misunderstanding of the trial commissioner’s role and underscore quite clearly the perils of self-representation. The trial commissioner is not charged with the responsibility of “advising” the parties who appear before him during the course of the trial. The trial commissioner is expected to review the evidence submitted by the parties and to issue a decision on the merits. The trial commissioner may also insure that no unfair advantage is taken of the pro se claimant but may not litigate her case for her. Id.

We find that the claimant in this matter does not have a meritorious argument on procedural grounds or a meritorious claim on the substance of the case. We affirm the Finding and Denial and dismiss this appeal.

Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.

1 The trial commissioner specifically cited inconsistencies in the claimant’s testimony in Findings, ¶¶ 16, 20, 24 & 31. The trial commissioner credited testimony contradicting the claimant’s account in Findings, ¶¶ 41, 44-46, & 51. The commissioner also cited the claimant’s delay in seeking medical treatment and his decision to continue working after the alleged incident as being inconsistent with his testimony concerning the injury. This fact pattern is squarely on all fours with 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), and the trial commissioner could reasonably find Dr. Beiner’s opinions as to causation unreliable. BACK TO TEXT

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