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Clukey v. Century Pools

CASE NO. 5683 CRB-6-11-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 22, 2012

DAVID CLUKEY

CLAIMANT-APPELLANT

v.

CENTURY POOLS

EMPLOYER

and

HARTFORD INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Peter M. Appleton, Esq., Appleton & Appleton, LLC, 266 Pearl Street, Hartford, CT 06103.

The respondents were represented by Judith A. Murray, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

This Petition for Review from the July 22, 2011 Findings and Awards of the Commissioner acting for the Sixth District was heard February 17, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Daniel E. Dilzer and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from Findings and Awards issued in this case. He argues the evidence presented to the trial commissioner did not support granting a Form 36 and that he remains entitled to temporary total disability benefits. We have reviewed this matter and find it was decided based on the trial commissioner’s evaluation of factual evidence. We may not usurp the fact-finding prerogative of the trial commissioner; therefore, we affirm the Findings and Awards.

The trial commissioner found the following facts at the conclusion of the formal hearing. The commissioner noted the claimant had sustained a motor vehicle accident in April, 2008 in Middletown, Connecticut, and suffered a back injury. The commissioner took administrative notice that subsequent to that event a voluntary agreement was approved by the Commission on February 10, 2009, wherein the parties agreed that the claimant sustained a compensable injury to his lower back on April 16, 2008, while employed by the respondent/employer. Subsequent to the accident the claimant underwent three back surgeries including a surgery performed by Dr. Gerald Becker and Dr. William Druckemiller that resulted in the claimant getting a staph infection and the subsequent removal of hardware. The claimant testified that after the last surgery he was hospitalized for a month and three days.

Dr. Becker treated the claimant following the third surgery and after an August 2, 2010 visit, Dr. Becker opined that the claimant “does continue to work in a sedentary capacity” and “may continue to work as he has been doing.” The claimant saw Dr. Becker again on September 27, 2010, and his report for that date indicated, “he at best has been able to perform supervisory type work.” The respondent filed a Form 36 on September 7, 2010 and on October 15, 2010. Commissioner Mlynarczyk approved the discontinuance of temporary total disability benefits effective as of the date of filing. Findings, ¶ 7.1

The trial commissioner considered the claimant’s testimony at the formal hearing. The claimant testified that he started working for Rizzo Pool about a year after high school and had worked at this firm for about twenty years, starting at the bottom and working his way up to a service tech. He testified he ran and trained crews. The claimant testified that he was familiar with the Spitko property in Newington, as he had opened and closed her pool in the past and that there had been a “total redo” of the whole backyard of this property in the summer of 2010. The claimant testified that he went to the Spitko property to “just hang out” and “to get up and get out and do stuff” meant a lot to him “physically and mentally.” He also said he talked to the guys working at the Spitko property and gave them “some pointers.” Findings, ¶ 12. The claimant testified he told Dr. Becker he was capable of supervisory work. He further testified that he was at the Spitko property on September 9, 2010.

The respondents introduced a surveillance tape filmed at the Spitko property on September 9, 2010. While at the Spitko residence the claimant was observed striking a cement mixer multiple times with a hammer. The claimant was also observed bending in front of the cement mixer and striking the inside of the mixer with a hammer. The claimant was observed bending at the waist numerous times. The claimant also gave advice as to how much coloring should be used in the cement to obtain the proper color.

The respondents also introduced a deposition transcript from the claimant’s testimony in a lawsuit he filed pursuant to the motor vehicle accident. At a deposition held September 14, 2010, the claimant was asked, “Do you feel you are capable of working now” and he responded “No.” He was then asked “Why is that?” and the claimant responded “I can’t do anything. I can’t bend, I can’t. I could do very few things, and I can’t do what I used to do at all.” Findings, ¶ 19. The claimant further testified at this deposition he could not work part-time and he had not worked at all since the accident. Findings, ¶ 20. The claimant testified that his activities with his friends were recreational. “...I just go out there and hang out.” Findings, ¶ 21. The claimant further disagreed at the deposition with Dr. Becker’s opinion that he had a work capacity for up to five hours per day, or that he had a supervisory work capacity. Findings, ¶ 22.

The claimant testified at the formal hearing he had not shown the surveillance tape from the Spitko home to Dr. Becker. The claimant’s attorney met with Dr. Becker in his Glastonbury office on September 29, 2010 (twenty days after the surveillance video was taken) regarding the claimant and his back pain, but there was no evidence the tape was presented to Dr. Becker at that occasion. Findings, ¶¶ 23-24.

Michael Carpentier, an acquaintance of the claimant, and Randy Spitko, brother of the Spitko property owner, also testified at the formal hearing. Mr. Carpentier testified he knew the claimant for about twenty five years and he worked at the Spitko property in the summer of 2010. He testified the claimant asked him if he needed extra work and that the claimant offered him the job. Findings, ¶ 25. He further testified he saw the claimant at the property and described his activities there as “[w]alking around supervising, saying do this, do that.” Findings, ¶¶ 26-27. He described the claimant as “instructing us to make sure the job went well, and make sure it was done to the homeowner’s specifications” and said that the claimant was “[m]ore or less...” “...in charge of the job?” Findings, ¶ 28. Mr. Spitko testified he went to the property daily and he observed the claimant doing supervisory work such as “checking the grout lines and stuff. You know it was a cement wall with stone veneer placed on to it, and he would check to make sure the stones were properly adhered, make sure the grout was, you know, neat and nice. 4" Findings, ¶¶ 29-30. Mr. Spitko testified that the claimant was capable of performing supervisory work and had expertise the other workers on the job lacked. Findings, ¶ 31.

Based on these facts, the trial commissioner concluded the claimant’s testimony was neither credible nor persuasive. The trial commissioner found Dr. Becker’s opinions as to the claimant’s work capacity not persuasive as they were based on misrepresentations from the claimant to his physician. The commissioner found the claimant had a work capacity beyond the restrictions placed on him by Dr. Becker and Dr. Becker’s restrictions were therefore not reliable. The commissioner dismissed the claimant’s claim for temporary total disability benefits and granted the respondent’s Form 36.

The claimant filed a Motion to Correct and an Amended Motion to Correct. The trial commissioner denied the proposed corrections. The claimant also filed a Motion for Articulation. The trial commissioner denied this motion as well. The claimant has appealed from this decision. The respondent moved to dismiss the Petition for Review as untimely, but the claimant amended the Petition for Review to reference the Motion to Correct and the date in which a decision was issued on said motion. The respondent has not briefed the issue of jurisdiction to hear this appeal, so we deem this issue abandoned Christy v. Ken’s Beverage, Inc., 5157 CRB-8-06-11 (December 7, 2007).

The claimant’s argument on appeal is that the evidence presented at the formal hearing did not establish he was working, and therefore, the Form 36 should not have been approved. As we have noted in many similar cases, we generally defer to the trial commissioner’s evaluation of the evidence presented. See Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007).

We begin by stating that the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
Our inquiry must focus on whether the trial commissioner was presented with sufficient evidence to conclude that the claimant had a work capacity. We note at the outset that we have reiterated that it is the claimant’s burden to prove that they are totally incapacitated. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007).

Id.

The trial commissioner herein was presented with the testimony of the claimant who said what he was doing at the Spitko property amounted to essentially a social activity unrelated to work. The trial commissioner found this testimony neither credible nor persuasive. We generally must defer to the trial commissioner’s assessment of credibility; particularly when the claimant testifies in person before the trial commissioner. “The trial commissioner in the present action specifically found the claimant ‘less than credible.’ This is dispositive of the appeal. 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).” Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (Per Curiam).

The claimant does draw attention to the testimony of the property owner, Nancy Spitko and her brother, Randy Spitko, for the argument the evidence was that the claimant was not paid for what he was doing at the Spitko home. We note that these issues were presented to the trial commissioner in the Motion to Correct, which he denied. When a trial commissioner denies a Motion to Correct, 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). In any event, the threshold question herein was not whether the claimant was compensated for his activities, but whether these activities were consistent with a lack of a work capacity. See Leandres, supra.

We find the overall fact pattern herein is very similar to Smith v. Federal Express Corporation, 5405 CRB-7-08-12 (December 1, 2009). In Smith the claimant argued that his extensive activities at his son’s business did not constitute indicia of a work capacity. The trial commissioner concluded to the contrary and we affirmed that finding. We further note that in this case all the objective medical evidence found credible by the trial commissioner, i.e., the reports of Dr. Becker, consistently stated the claimant had a sedentary work capacity. See Respondent’s Exhibits 3 and 4.2 The claimant disputed this finding at his deposition in the motor vehicle lawsuit. The trial commissioner, upon reviewing the other evidence submitted herein, could reasonably conclude the claimant had a work capacity and was still seeking benefits instead of seeking employment. In fact, the reports of Dr. Becker specifically state the claimant had been seeking work and was able to “perform supervisory type work.” Respondent’s Exhibit 4.

The trial commissioner, after evaluating the surveillance tape and the testimony of Mr. Spitko and Mr. Carpentier, could reasonably conclude the claimant had the ability to perform supervisory work on a construction site and indeed was doing such work.3 Such a conclusion would warrant granting the Form 36 and discontinuing benefits.

The trial commissioner’s decision is consistent with evidence on the record he found credible, persuasive and probative.4 We affirm the Findings and Awards.

Commissioners Daniel E. Dilzer and Ernie R. Walker concur in this opinion.

1 The Findings and Awards use the date “September 7, 2011.” We conclude this is a harmless scrivener’s error, Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). BACK TO TEXT

2 Even if the trial commissioner erred in concluding Dr. Becker’s restrictions were “not reliable”; the restrictions as stated evidenced an ability to perform remunerative labor. Any error on this issue was harmless error at best. BACK TO TEXT

3 We note the evidence on the record was that everyone working at the Spitko home was paid in cash. See Transcript, pp. 57-59 and pp. 73-74. The claimant denied he was paid, and the other witnesses testified that he had not been paid, but there is no Finding that these statements were deemed credible. The claimant proposed corrections on the issue of compensation paid to workers on the job to reach a finding consistent with the claimant’s narrative, and these corrections were denied by the trial commissioner. We may infer he did not find this evidence persuasive or probative, Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (Per Curiam). BACK TO TEXT

4 The claimant argues the trial commissioner should have issued an articulation of his reasoning on various issues. We find no error. In cases which hinge on the credibility of the claimant, such a determination is generally unambiguous. See Buonafede v. UTC/Pratt & Whitney, 5499 CRB-8-09-9 (September 1, 2010). BACK TO TEXT

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Page last revised: August 22, 2012

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