CASE NO. 4389 CRB-3-01-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 27, 2002
D M & M RESTAURANTS, INC.
The claimant was represented by David Gibson, Esq., Gibson & Donegan, LLC, 420 East Main Street, P.O. Box 808, Branford, CT 06405.
The respondents were represented by Richard Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the May 2, 2001 Finding and Award of the Commissioner acting for the Third District was heard November 16, 2001 before a Compensation Review Board panel consisting of the Commission Chairman, John A. Mastropietro and Commissioners George Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the May 2, 2001 Finding and Award of the commissioner acting for the Third District. In that Finding and Award the trial commissioner found that the claimant sustained an injury to her back on July 10, 1998. The trier concluded that the claimant’s injury occurred while she was in the employ of the respondent and arose out of and in the course of her employment.
The pertinent facts in this matter are as follows. The claimant was employed by the respondent, Denny’s Restaurant, as a waitress. The claimant alleged on July 10, 1998 she was scheduled to work from 5:00 p.m. to 2:00 am. At about 11:30 p.m. the claimant entered the employer’s storeroom in order to replenish ketchup bottles. As she picked up a box containing 24 ketchup bottles, she simultaneously experienced pain in her back and heard a pop. Following this incident and for some days thereafter, the claimant worked her assigned shifts. However, on July 15, 1998 the claimant sought medical attention at the West Haven Medical Group due to increased pain. The West Haven Medical Group took the claimant’s history and completed an industrial accident medical report. The claimant was treated by Dr. Channa Perera who diagnosed the claimant’s injury as a “tender right paraspinal muscle at the right upper lumbar region.” Findings ¶ 16.
The trial commissioner found that the claimant filed two Forms 30-C. The first was dated August 21, 1998 and the second was filed June 17, 1999. The commissioner specifically noted that the respondents did not object to the claim on the basis of timeliness. Findings ¶ 2. At issue before the trier was the defense to the claim raised by the respondents in their Form 43, i.e., that the injury did not arise out of and in the course of her employment.
The trial commissioner found and concluded that the claimant’s injury arose out of and in the course of her employment. In their appeal the respondents present the following issues for review; (1) whether the trial commissioner’s conclusion that the claimant’s back injury arose out of and in the course of her employment was error, (2) whether the trial commissioner imposed an incorrect burden of proof on the respondents in their defense to the claim, and (3) whether the trial commissioner erred in failing to grant the respondents’ Motion To Correct.
The first issue we consider is whether the commissioner’s conclusion that the claim arose out and in the course of employment was based on unreasonable or impermissible factual inferences. In support of this claim of error the respondents contend that the trier’s factual findings are largely dependent on the claimant’s own testimony and that testimony was contradicted by the testimony of other witnesses. Furthermore, the respondents argue that the claimant’s testimony itself was inconsistent.
In its allegation of improper fact finding the respondents make much of the fact that the claimant told her employer that she was not reporting or claiming a work related injury occurred on July 10, 1998 and that her back complaints were not different from her prior “usual” back complaints. This conversation with her employer followed a telephone call from the West Haven Medical Group regarding claimant’s medical treatment on July 15, 1998. In that telephone call to the employer, claimant’s manager was informed that the claimant sought medical treatment at that facility and that she gave a history to the staff there that she injured her back when she lifted a carton of ketchup bottles at work.
The mere fact that the testimony of other witnesses conflicts with the claimant’s testimony does not compel the trier to reject a claimant’s testimony. In fact this exemplifies the trial commissioner’s function, i.e., to accept or reject portions of evidence and testimony based on the weight and credibility the trier assigns to it. Clearly, in the instant matter the trier assigned greater weight and credibility to the claimant’s testimony.
The fact that the claimant told the medical treater of the lifting incident and then denied the relevance of that event to her employer can be appreciated as she also testified that she did not wish to report a Workers’ Compensation claim to her employer. Her testimony reflected her fear of termination; for making a Workers’ Compensation claim and her fear that her work schedule would be reduced due to her employer’s concerns regarding claimant’s attendance during a previous employment period. Findings ¶¶ 17, 18 and 19.
The weight and credibility ascribed to a witness’s testimony is a matter within the purview of the trial commissioner. Ricigliano v. J. J. Ryan Corp., 53 Conn. App. 158 (1999), cert. granted in part, 249 Conn. 923 (1999), dismissed as improvidently granted, 252 Conn. 404 (2000). As an appellate body we do not engage in de novo review. Fair v. Peoples Savings Bank, 207 Conn. 535 (1988); Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345 (1999), cert. denied, 251 Conn. 916 (1999).
Additionally, we note that none of the factual corrections sought by the respondents challenged the claimant’s testimony as to why she did not report the July 10, 1998 lifting injury to her employer, i.e., fear of either termination or a reduction in work hours. See respondents Motion To Correct filed May 7, 2001.
Finally, we consider the issue as to whether the trial commissioner’s Finding and Award resulted from a misapplication of the law. On this issue the respondents contend that the trial commissioner’s statement in paragraph H of his findings misstates the law. In paragraph H the trier stated, “The respondent presented no contradictory evidence or explanation regarding how the injury of July 10, 1998 occurred or why the claimant required substantial medical treatment over a considerable period of time for a low back injury since July 10, 1998.” In support of its claim of error, the respondents correctly note that the burden of proof in Workers’ Compensation claims rests with the claimant. It is the claimant’s burden to persuade the trier that an injury arose out of and in the course of employment. Kolomiets v. Syncor International Corp., 252 Conn. 261 (2000). We believe that paragraph H was not intended by the trier as a statement of the law as to the burden of proof, but was merely intended as a reflection of the commissioner’s thought process in his assessment of credibility and weight given the evidence before him.
Once a claimant has made out a prima facie case, the burden then shifts to the defendant to “show such facts as will defeat or diminish a recovery.” Rousu v. Collins Co., 114 Conn. 24 (1931); cf. Lafayette v. General Dynamics Corp., 255 Conn. 762 (2001) (held respondents collaterally estopped from defending liability where claim was previously litigated under the federal Longshore Harbor Workers’ Compensation Act and claimant’s burden of proof under that Act was the same as that under Connecticut’s Workers’ Compensation Act).
We believe that paragraph H reflects the commissioner’s conclusion that the claimant satisfied her burden of making out a prima facie case, and that when the burden shifted to the respondents, they failed to demonstrate such facts as would defeat the claim. Again we recognize that the respondents correctly state the claimant’s burden of proof. However, it is clear that the trial commissioner found that the claimant met her prima facie burden and the respondents did not sufficiently rebut.
Our review of the issues presented by the respondents on appeal leads us to conclude that the trier’s conclusion was not the result of unreasonable or impermissible factual inferences, without evidence or contrary to law. We therefore affirm the May 2, 2001 Finding and Award of the Commissioner acting for the Third District.
Commissioners George A. Waldron and Ernie R. Walker concur.