Grajales v. Aero-Clean Demolition Contractors

The claimant was represented by Joseph F. Trotta, Esq., Trotta, Trotta & Trotta, 195 Church Street, Suites 815-817, P. O. Box 802, New Haven, CT 06503-0802.

The respondents were represented by Richard D. Stabnick, Esq., and Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the February 24, 2000 Finding and Dismissal of the Commissioner acting for the Seventh District was heard August 25, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the February 24, 2000 Finding and Dismissal of the Commissioner acting for the Seventh District. He contends on appeal that the trier erred by dismissing his claim for compensation. We affirm the trial commissioner’s decision.

The trial commissioner found the following facts. On July 23, 1996, the claimant was standing on a six-foot-high scaffold, cleaning a concrete wall with a hand-held grinding machine, during the course of his employment with the respondent Aero-Clean Demolition Contractors. He testified that the scaffold “opened up” and caused him to fall to the floor, striking his neck, back and shoulder. Though there were other workers in the immediate area, no one actually saw him fall. Two co-workers did state that they saw the claimant lying on the floor immediately afterward, though one slightly modified that testimony upon further examination. The claimant also called the superintendent from the job site as a witness, but he could remember virtually nothing regarding the events of that date or the claimant’s physical condition during the days that followed.

The claimant stated that he performed no further work on the date of his injury, but continued to come to work every day for the next two months, until the contracting job was completed. He then obtained similar work for another company, and worked through December 1996. He first sought treatment for his alleged injuries on January 4, 1997, explaining that the delay was due to the fact that it had taken him all those months to qualify for medical benefits with his union. The trier noted that there were many inconsistencies and contradictions in the claimant’s testimony. He held that the claimant had failed to establish the occurrence of a compensable injury, and dismissed the instant claim for benefits. A petition for review eventually followed.

The claimant’s argument on appeal is very straightforward. He contends that his testimony was consistent, both intrinsically and with that of his witnesses, and the trial commissioner should therefore have given it credence. For example, even though none of the witnesses at trial personally saw the claimant’s accident, both of the aforementioned co-workers said that they were alerted by the yelling and screams of others that someone had fallen off a scaffold, and then saw the claimant lying on the ground and being helped up by the supervisor. Brief, 2. According to the claimant, “A logical conclusion to be derived from the testimony of these two witnesses, is that workers in the immediate vicinity did see the claimant fall, and the witnesses saw him either on the ground or as he was being helped up.” Id., 2-3.

Although such a conclusion was indeed possible, it was obviously not the one drawn by the trial commissioner after he heard the testimony. We must respect the trier’s assessment of this evidence on appeal. In order for an injury to be compensable under the Workers’ Compensation Act, it must arise out of and in the course of a claimant’s employment. Herman v. Sherwood Industries, Inc., 244 Conn. 502, 505 (1998); Palandro v. Bernie’s Audio-Video T.V. & Appliances, 3876 CRB-3-98-8 (Sept. 2, 1999). The claimant bears the burden of proving this fact to the trial commissioner, who alone determines whether or not the evidence supports the claimant’s allegations. Spatafore v. Yale University, 239 Conn. 408, 418 (1996). He is the sole arbiter of all issues concerning the weight and credibility of the testimony presented by the parties, and this board may not retry the facts of the case or independently assess the credibility of the witnesses on review. Ferri v. Double A Transportation, Inc., 3503 CRB-8-96 12 (April 29, 1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). Instead, this board may disturb the findings of the trier only if they are unsupported by the evidence, or if they fail to include undisputed material facts. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). None of those conditions have been met in this case.

Here, the trial commissioner listened to the witnesses, and then decided that the claimant did not meet his burden of proof. This was a quintessential example of his exclusive factfinding function, and there is nothing we could legally do to reverse the commissioner’s ruling on appeal. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Tartaglino v. State of Connecticut/Department of Correction, 55 Conn. App. 190, 195 (1999); Dubay v. M&R Express, 3847 CRB-1-98-6 (Sept. 2, 1999). As per Admin. Reg. § 31-301-3, the trier was not required to explain why he found the claimant’s testimony unconvincing. Under our legal system, if a finder of fact is not persuaded by a witness’ story, a reviewing body cannot second-guess his judgment on review. Therefore, our holding must be that the trier’s decision is affirmed.