Caltabiano v. Glocalt, Inc. d/b/a Tony’s Huntington Inn

The claimant was represented by John T. Bochanis, Esq., Daly, Weihing & Bochanis, 1115 Main St., Bridgeport, CT 06604.

The respondents were represented by Maureen Driscoll, Esq., Maher & Williams, 1300 Post Road, Fairfield, CT 06430.

This Petition for Review from the February 10, 1997 Finding and Dismissal of the Commissioner acting for the Eighth District was heard November 21, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 10, 1997 Finding and Dismissal of the Commissioner acting for the Eighth District. In that decision, the trial commissioner concluded that the claimant’s automobile accident did not arise out of or occur in the course of his employment. In support of his appeal, the claimant contends that the evidence supports a determination that the automobile accident arose out of and in the course of his employment. We find no error on the part of the trial commissioner.

The trial commissioner found the following facts. The claimant was employed as the manager of Tony’s Huntington Inn (hereinafter “employer”), and Krystyna Osos was employed as the head waitress. On August 8, 1994, at 4:00 P.M., the claimant was a passenger in a car driven by Osos, when the car went off the highway and flipped in Westbrook, Connecticut. The claimant and Osos testified at the formal hearing that the accident occurred after they had been evaluating restaurants in the Misquamicut beach area. Neither the claimant nor Osos took any notes or interviewed any employees at the restaurants which they visited. Officer Slonski at the scene of the accident noted the smell of alcohol on both people, that they were in beach clothes, and that Osos had stated that there had been some drinking on the beach. (Finding No. 24-25).

The claimant contends that the sole purpose of the trip was to conduct restaurant evaluations, and thus that the accident arose out of and during the course of the employment. The trial commissioner specifically found that neither the claimant nor Osos presented credible testimony, and further found that there were many contradictions in their testimony. Specifically, the testimony from the claimant contradicted Osos’ testimony regarding the following issues: the time and place of the departure on August 8, 1994, the performance of restaurant evaluations immediately preceding the car accident, and the destination at the time of the accident. (Finding No. B).

The claimant’s argument on appeal is essentially that the commissioner’s conclusion is not supported by the evidence. In essence, the claimant is seeking to have this board retry his case, which we may not do. Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In further support of his appeal, the claimant contends that the trial commissioner erred by relying on a written statement taken from the claimant by the respondent insurer’s investigator on August 17, 1994. The claimant contends that when he made this statement to the investigator, he believed the investigator to be an agent of his automobile insurance company. The claimant further contends that he did not read his statement before signing it, and that it was not admitted into evidence and therefore should not have been relied upon by the trial commissioner. We find no merit to these arguments, as the trial commissioner’s decision is not based upon the statement taken by the investigator. Rather, the trial commissioner cites numerous inconsistencies in the accounts given by the claimant and Osos regarding the events on the day of the accident. (Finding No. B). Moreover, the trial commissioner may properly have relied upon the investigator’s testimony at the formal hearing regarding the investigation.

The trial commissioner’s findings of fact are fully supported by the record. Where, as here, the commissioner’s determination is based upon the weight and credibility that he has accorded the evidence, we will not disturb such a determination. Dickey v. Harris Graphics, 12 Conn. Workers’ Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994). Moreover, a trial commissioner has the “right to reject testimony even if seemingly uncontradicted.” Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 235, 1000 CRD-5-90-4 (Oct. 30, 1991); see also Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996).