State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Zbras v. Colonial Toyota

CASE NO. 5631 CRB-4-11-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 14, 2012

PETER ZBRAS

CLAIMANT-APPELLEE

v.

COLONIAL TOYOTA

EMPLOYER

and

UTICA NATIONAL INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Michael R. Kerin, Esq., Kerin Law Offices, P.C., 120 Broad Street, Milford, CT 06460.

The respondents were represented by Sharon McLoughlin, Esq., Behman Hambelton, LLP, 190 Washington Street, Middletown, CT 06457.

This Petition for Review from the December 30, 2010 Finding and Award/Finding and Dismissal of the Commissioner acting for the Fourth District was heard August 26, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Christine L. Engel and Ernie R. Walker.

OPINION

JOHN A MASTROPIETRO, CHAIRMAN. This appeal is from a Finding and Award/Finding and Dismissal (“Finding and Award”) which included a somewhat unusual factual narrative. The claimant in this matter admitted he was untruthful to his employer as to what he was doing prior to the time of the compensable injury. Nonetheless, the trial commissioner found the claimant’s explanation of how he was hurt credible and found the claimant’s narrative was supported by probative medical evidence. The respondents have appealed from the Finding and Award, but as the basis for the commissioner’s decision was his evaluation of contested testimony, we affirm the Finding and Award. The trial commissioner also levied sanctions against the respondents for undue delay. We remand this matter to the trial commissioner for specific findings establishing the factual predicate to levy sanctions against the respondent.

The commissioner reached the following findings at the conclusion of the formal hearing. He found the claimant had sustained a compensable spine injury on May 12, 1999 that had been administered by the respondent-insurer since that date. The commissioner found the claimant testified that in February 2010 he started working for Fairfield Auto Collision. Much of the testimony focused on what the claimant did on May 7, 2010, when the claimant punched in for work at 9:03 a.m. and punched out at 3:02 p.m.

The claimant testified that on that day he told a co-worker, Jeff Fahy, that he was leaving work to play golf. The claimant testified he had not played golf in years and did not play golf on May 7, 2010. Instead, he testified he went to Wolcott to pick up a laptop computer undergoing repair from PC Xperts, a shop run by the claimant’s friend, Robert Orfino. The claimant said he arrived in Wolcott between 3:45 p.m. and 4:15 p.m. The claimant further testified he was fearful of losing his job if he told his employer about his prior back injury. Therefore, when he left work early, he told his employer he was going to play golf or said he was going to the dentist. The claimant said that after picking up his computer on the afternoon of May 7, 2010 he drove to his second job at the Double R Mobil in Oxford, where he started work about 6 p.m., worked until 11 p.m. and then drove home.

The respondents presented evidence questioning this narrative via testimony from the claimant’s co-workers at Fairfield Auto Collision. Louis Marino testified via deposition that claimant told him on May 7, 2010 he wanted to get out of work early to play golf and he heard the claimant answer a cell phone call about meeting a friend to play golf. Mr. Fahy testified via deposition that the claimant told him on May 7, 2010 he was going to play golf that afternoon and the claimant was unhappy he had work to do that prevented him from leaving until later in the afternoon. Mr. Fahy said he thought the claimant was not expecting to have to work that day and was stuck at work longer than he expected. The owner of Fairfield Auto Collision, Sal Dinardo, also testified via deposition. He said he hired the claimant to work a five day a week work week and eight hour work day, but the claimant was sent home early when there was not enough work. Mr. Dinardo said he did not know the claimant had a prior injury, and said Mr. Fahy had told him that the claimant had left to play golf. Mr. Dinardo further testified the claimant was not originally scheduled to work on May 7, 2010 but was called in because a car needed work. He said he did not think the claimant wanted to come to work that day.

Mr. Orfino testified at the formal hearing on behalf of the claimant. He said he is a long time friend of the claimant and confirmed his narrative of having picked up a laptop computer at his store in Wolcott the afternoon of May 7, 2010. He said he provided an $85 receipt for the repair cost. An attorney for the respondent, Elycia Solimene, testified however that Mr. Orfino told her before the formal hearing he had not repaired the claimant’s laptop and had fabricated the $85 receipt. She said she had admonished him against perjury.

The claimant testified that he was not injured until Mother’s Day, May 9, 2010. On that day the claimant testified he drove to Seymour to buy flowers for his mother and the flowers caused him to sneeze. This caused back pain forcing him to drop to one knee. He said he drove to his parent’s house and his father then drove him to the Griffin Hospital emergency room. The claimant said he was prescribed medications that day, and he returned two days later and was prescribed flexeril and motrin. The claimant said he attempted to see Dr. James FitzGibbons, his authorized orthopedic doctor, but the respondent insurer would not pay for it. The claimant’s father paid cash so he could be examined by Dr. FitzGibbons on May 12, 2010. The claimant said he received no indemnity benefits until the Friday before an August 12, 2010 formal hearing; and he had received no payment from the respondent for treatment prior to the formal hearing. The claimant said the sneezing incident of May 9, 2010 was the only injury or exacerbation to his low back.

The trial commissioner noted that Dr. Jerrold Kaplan performed a respondent’s medical examination on May 19, 2010. His report stated the claimant’s sneeze caused a severe flare in the claimant’s condition and the signs and symptoms were consistent with an acute disc irritation with a possible extension of the claimant’s herniation. In an addendum to the report Dr. Kaplan said the claimant suffered an aggravation of a pre-existing injury. Dr. Kaplan has asked whether his opinion would change if he was told the claimant had played golf two days earlier and Dr. Kaplan said that golf could have been the reason for the exacerbation rather than sneezing but he could not tell the extent of any problems from golf. In a second addendum, Dr. Kaplan said the L2-L3 disc protrusion needs to be addressed and surgery may be necessary, and restated his belief sneezing flared a pre-existing condition. The claimant’s treater, Dr. FitzGibbons, opined on June 10, 2010 that within a reasonable medical probability the underlying 11 year old compensable injury was a substantial contributing factor to the May 9, 2010 exacerbation. He opined as of September 7, 2010 the claimant was unable to work until further notice.

Based on this record the trial commissioner determined the claimant was credible as to how the injury occurred as well as in his statement he did not tell his co-workers the truth when he said he left the business to play golf. The commissioner did not find Mr. Orfino credible and found Attorney Solimene credible. The trial commissioner found Dr. Kaplan persuasive that the sneezing episode caused a flare-up of the 1999 injury and found Dr. FitzGibbons credible that the sneezing episode was a substantial contributing factor in the exacerbation to the 1999 injury. The trial commissioner concluded the respondents “failed to prove the claimant played golf or was injured on May 7, 2010.”. Findings, ¶ j. Nonetheless, the original Findings held there was no undue delay or unreasonable contest to the claim as “[t]he respondents had a good faith reason to investigate the claimant’s contention that a sneeze caused his medical problem, or that the claimant left work to play golf in light of the statement he made to co-workers, with golf then being the injury’s causal link.”. Findings, ¶ k. Accordingly the trial commissioner ordered reasonable and necessary medical care as prescribed by Dr. FitzGibbons and indemnity payments from May 9, 2010 going forward.

The respondents filed a Motion to Correct seeking to have the claimant deemed not credible and the alleged aggravation injury deemed noncompensable. The trial commissioner denied this request. The claimant filed a Motion to Correct as well. His Motion to Correct sought to find the respondents lacked a good faith basis to contest the claim after completing discovery on July 23, 2010. The trial commissioner granted three of the proposed five corrections, including a correction of Finding, ¶ k and Order, ¶ 3 which had the effect of reversing his prior determination that the respondents were not subject to sanctions. The respondents have subsequently pursued this appeal.

The respondents have two separate grounds for appeal. They argue on substantive grounds that the claimant should not have been awarded benefits after the formal hearing based on the evidence he presented. We believe, for the reasons set forth, that we must defer to the judgment of the trial commissioner in this instance. The other argument presented is that the trial commissioner should not have reversed his original decision and levied sanctions against the respondents following the claimant’s Motion to Correct. We are not satisfied that the trial commissioner adequately justified his decision on that issue, and therefore, we remand the issue of sanctions for additional findings.

The trial commissioner determined that the claimant’s narrative as to how he was injured was credible and persuasive. On appeal, this panel must provide “every reasonable presumption” supportive of the Finding and Award. Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009). The claimant testified before the trial commissioner at a formal hearing held on August 12, 2010. The trial commissioner found the claimant credible and persuasive. We cannot revisit this determination of witness credibility, Burton v. Mottolese, 267 Conn. 1, 40 (2003).

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.

Id.

We must defer to the trial commissioner when it relates to whether he or she believes a witnesses’ narrative is consistent with the mechanism of injury. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007) and Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006). While a trial commissioner may discount medical evidence when he or she concludes it is based on an unreliable patient narrative, 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), in the present case the trial commissioner believed the claimant’s narrative. As the trial commissioner’s decision was consistent with probative medical evidence presented at the hearing, Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010), we must defer to his conclusions.

The respondents further argue that even if the claim was reasonably deemed compensable, the trial commissioner should not have ordered ongoing temporary total disability benefits beyond the date of the last formal hearing. The claimant argues that pursuant to Hodio v. Staples, Inc., 5152 CRB-3-06-10 (October 3, 2007) the trial commissioner was legally permitted to approve this relief. We agree with the claimant that the Hodio decision is on point and affirm the commissioner’s decision on temporary total disability benefits.

We now turn to the issue of sanctions. The trial commissioner originally decided against levying sanctions, but then reversed his position after the claimant filed his Motion to Correct. The respondents argue that in the absence of any new evidence presented by the claimant that this decision was improper. Moreover, the respondents argue that there simply was not a sufficient quantum of credible evidence in favor of the claimant as of July 23, 2010 to have determined that continuing a contest after that date was unreasonable.

This tribunal has long held that unless a claimant presents truthful testimony to the trial commissioner, he is barred from recovery in this forum. Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB 6-07-7 (July 22, 2008). “We do not condone the use of misrepresentation or artifice by either claimants or respondents in proceedings before this Commission.”. Mankus v. Robert Mankus, 4958 CRB-1-05-6 (August 22, 2006), aff’d, 107 Conn. App. 585 (2008), cert. denied, 288 Conn. 904 (2008). The respondents argue that the claimant’s admission that he offered a false explanation for leaving work on May 7, 2009 provided legitimate grounds to question his veracity regarding the rest of his narrative.1 The trial commissioner initially agreed with this position, but was persuaded by the claimant’s Motion to Correct that as of July 23, 2010 there was no dispute as to the claimant’s position.

We acknowledge that a trial commissioner may modify his original findings after a Motion to Correct so as to conform the decision to the evidence presented on the record. Rizzo v. Stanley Works/Hand Tools Division, 5106 CRB-6-06-6 (November 21, 2007). In Rizzo we found that the trial commissioner appropriately modified the effective date of maximum medical improvement to conform to the testimony of the treating physician. In the present matter, the claimant argues the testimony of his former co-workers was so compelling as to vitiate the rationale to contest the claim. We have reviewed the deposition transcripts cited by claimant in support of his Motion to Correct. The claimant correctly points out that no witnesses testified that they saw the claimant play golf on May 7, 2010. However, the original findings of fact do not contain any representation that any witness testified in this manner. We have difficulty ascertaining how the original findings of the trial commissioner misstated or misinterpreted the testimony of those witnesses; unlike the grounds for the Motion to Correct granted in Rizzo, supra.2

The claimant appropriately cites Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008) that this tribunal has extended broad latitude to trial commissioners in deciding when a respondent’s conduct warrants the imposition of sanctions for undue delay or unreasonable contest. While in Kuhar, supra, we cited In re Shaquanna M., 61 Conn. App. 592, 603 (2001) as standing for an “abuse of discretion” standard in reviewing decisions regarding sanctions, we note that the next year the Appellate Court reversed an order of sanctions in McFarland v. Department of Developmental Services, 115 Conn. App. 306 (2009). The Appellate Court concluded the factual record in that case did not support a finding of malfeasance on the part of the respondents and concluded “[w]ithout a factual predicate underlying the award of attorney’s fees, that award cannot stand.”. Id., 323.

Since we must extend “every reasonable presumption in favor of the action” Daniels v. Alander, 268 Conn. 320, 330 (2004) we have reviewed the Finding and Award to ascertain if there is a sufficient factual predicate to sustain the award of sanctions. We are left uncertain as to the trial commissioner’s rationale. The record herein is not akin to Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006), where the trial commissioner made an affirmative finding that the respondent’s defense was “incredulous” or Marra v. Ann Taylor Stores Corp., 5027 CRB-3-05-11 (December 29, 2006) where causation was not an issue and the respondent’s medical expert agreed with the claimant’s treating physician. In those cases the record clearly supported the trial commissioner’s decision. In this case, the trial commissioner, after declining to sanction the respondent, simply granted a Motion to Correct awarding sanctions and did not issue an independent explanation as to why he chose to do so.3

We cannot affirm a finding that a party before this Commission should be sanctioned unless we can clearly ascertain from the record what the rationale is for levying such sanctions. McFarland, supra. Owing to the deference we provide trial commissioners we herein remand Finding, ¶ k and Order, ¶ 3 of the Finding and Award to the trial commissioner for a factual predicate justifying the award of sanctions consistent with § 31-300 C.G.S. In all other respects, the Finding and Award is affirmed.

Commissioners Christine L. Engel and Ernie R. Walker concur in this opinion.

1 We also note that the trial commissioner did not correct his finding that he found a critical witness for the claimant, Robert Orfino, not credible and accepted as credible testimony that Mr. Orfino testified in an untruthful manner before the Commission. BACK TO TEXT

2 The claimant argues that following the July 23, 2010 depositions “there was not a scrap of evidence to suggest that the claimant was injured in any other way than that which he was found, by the commissioner to have credibly testified” Claimant’s Brief, p.13. We note two problems with this reasoning. First, the claimant’s testimony did not occur until August 12, 2010 but the claimant’s Motion to Correct levied penalties commencing as of July 23, 2010. The Motion to Correct presumes that immediately after concluding discovery the respondents should have known the claimant would be deemed a credible witness. Based on the holding of Burton v. Mottolese, 267 Conn. 1, 40 (2003), we do not know how, in the absence of other factors, the claimant’s credibility can be established prior to his testimony being presented. We also note that a respondent is not obligated to present witnesses and may successfully defend a claim solely on the basis of not believing the claimant. Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006). BACK TO TEXT

3 We find significant differences between this case and Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006). While both cases involved unwitnessed accidents, in Duffy we noted “the respondents appeared to have been sufficiently certain of the veracity of the claimant’s narrative that they adopted it in toto on official letterhead in correspondence to North Street School parents.” Id. In the present case, we are uncertain what the respondents did or said that constituted a lack of good faith in defending the claim. BACK TO TEXT

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Page last revised: March 8, 2012

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