Vazquez v. Unifirst Corp.

The claimant was represented by David Feliu, Esq., 44 Lyon Terrace, Bridgeport, CT 06604.

The respondents were represented by Joseph M. Kennedy, Esq., P.O. Box 3386, New Haven, CT 06515.

This Petition for Review from the February 20, 2002 Finding and Award of the Commissioner acting for the Fourth District was heard September 20, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the February 20, 2002 Finding and Award of the Commissioner acting for the Fourth District. They contend on appeal that there is insufficient evidence to support the trier’s finding that the claimant sustained a compensable injury to his back. We find no error, and affirm the trial commissioner’s decision.

The trier found that the claimant worked an eight-hour shift for the respondent Unifirst Corp. on August 7, 1998. The following day, he sought treatment at a hospital for pain and numbness in his left ankle. He was referred to a neurosurgeon, Dr. Mastroianni, who performed lumbar surgery on September 24, 1998. Dr. Mastroianni stated in a July 1, 1999 report that the claimant’s injury apparently occurred on the job while he was pushing a hamper filled with wet clothes, and the doctor diagnosed a 20% permanent partial disability of the back. The trier accepted this opinion, and ordered the respondents to pay permanency benefits and temporary total disability during the weeks the claimant was recovering from surgery. The respondents have appealed that decision to this board, along with the denial of their Motion to Correct.

The gravamen of this appeal is essentially an attack on the trier’s assessment of the claimant’s credibility. The respondents contend that it was legally erroneous for the trier not to take heed of evidence that tends to show that the claimant did not initially attribute his symptoms to a work injury. This allegedly overlooked evidence includes an emergency room report reflecting the claimant’s denial of any sustained trauma, contemporaneous reports from other doctors describing a spontaneous onset of symptoms or an unknown etiology, and the testimony of three of the claimant’s co-workers stating that he spoke and understood English reasonably well. Presumably, by giving credit to this evidence, the trier would have been forced to conclude that the claimant was not being truthful about the cause of his injury.

It is well-settled that the trial commissioner is the finder of fact in a workers’ compensation matter, which entitles him to resolve all issues concerning the credibility of the evidence. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). Whether or not a claimant has sustained an injury arising out of and in the course of his employment is a quintessential issue of fact, and the claimant bears the burden of persuading the trier that such an injury has occurred. Herman v. Sherwood Industries, Inc., 244 Conn. 502, 505 (1998); Spatafore v. Yale University, 239 Conn. 408, 418 (1996); Grajales v. Aero-Clean Demolition Contractors, 4202 CRB-7-00-3 (Jan. 25, 2001). In regard to the testimony of a witness, the trier possesses tremendous leeway within which to draw his impressions. He may reject evidence that superficially appears to be uncontradicted, and may omit facts from his written decision that would not affect its outcome given his assessments of credibility. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Phaiah, supra. Thus, a trier need not discuss testimony that he finds unpersuasive, and thus immaterial to the outcome of the case. Persico v. Sikorsky Aircraft Corp., 4464 CRB-4-01-12 (Nov. 15, 2002). This board may not disturb such a determination of fact on review. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Warren, supra.

Dr. Mastroianni’s July 1, 1999 medical report notes that the claimant’s employment had not previously been documented as the probable cause of his injury. Claimant’s Exhibit A. The doctor attributed this problem to a language barrier. “When I saw Mr. Vazquez, his youngest daughter was functioning as an interpreter, and I’m not certain that she got the gist of all of the historical questions. Consequently, she did not inform me that Mr. Vazquez was injured on the job and this was not recorded. Also, I think, in terms of Mr. Vazquez himself, he assumed that I had reports from Dr. Escobar, which would detail the work related injury, but I did not have [his] reports.” Id. The doctor added, “Given the documentation presented to me, I would conclude that this patient’s disc herniation was indeed post traumatic and work related . . . .” Id.

No other cause for the claimant’s injury has been suggested by the respondents, and it is readily foreseeable to an average layperson that a low back injury may occur while one is lifting or moving heavy objects, such as the 400-500 lb. clothes hamper described by the claimant in his testimony. Canevari v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001); December 19, 2000 Transcript, pp. 9-11, 14. The trier thus acted reasonably in relying on Dr. Mastroianni’s report. As noted by Dr. Mastroianni, Dr. Escobar’s notes also supported the claimant’s case, as they contain an entry dated August 17, 1998 that reads, “Patient mentioned at this time he had gotten hurt at work early month.” Exhibit A, supra. Together with the claimant’s testimony, this evidence creates a solid foundation for the trier’s ultimate decision regarding compensability.

The trier was not required to address and refute the possible negative inferences he could have drawn from the testimony of three of the claimant’s former co-workers, who stated that the claimant generally seemed able to communicate in English, and (in the plant manager’s case) did not recall the claimant mentioning an injury on the date it occurred. See September 5, 2001 Transcript. “Whether or not their testimony was directly challenged, the trier was free to evaluate the demeanor of the witnesses, the quality of their testimony, and the interplay of that testimony with the rest of the case, and then decide if he wanted to reject or accept all, part or none of their statements.” Persico, supra. On appeal, we cannot say that, based on this testimony, the trier should have inferred that the claimant was being untruthful about his need for an interpreter. To do so would be well outside our authority. Tartaglino, supra.

Also, the respondents apparently failed in their attempts to impeach the claimant’s credibility by calling attention to the medical reports of Dr. Mastroianni and Dr. Micalizzi that fail to mention any complaint of a work-related injury. See December 19, 2000 Transcript. Accordingly, those aspects of the case were not legally pertinent to its outcome, and the trier was not remiss in failing to discuss them in his Finding and Award. See Admin. Reg. § 31-301-3. As we stated in Horne v. Phoenix Soil, Inc., 3824 CRB-5-98-5 (April 12, 1999), “No matter how strongly the respondents believe that their version of the facts is the correct one, an appellate body does not re-evaluate the fact-finding part of a case. The trial commissioner has already decided that the claimant was telling the truth. We cannot change that on appeal, nor would it be our place to try.” Id, citing Fair, supra. In this case, even if the trier might have had cause to question the claimant’s veracity on other matters, such as the circumstances surrounding the inconsistencies in his doctors’ reports, he clearly believed that the back injury itself was attributable to the duties of the claimant’s employment. Therefore, it was within the trier’s authority to find that injury compensable. We have no ground for reversal here.

The trial commissioner’s decision is hereby affirmed. Insofar as the respondents may have failed to pay benefits due pending appeal, interest is awarded pursuant to § 31-301c(b).