Dzialo v. B & B Industries

CASE NO. 4509 CRB-2-02-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 5, 2003

JAMES DZIALO

CLAIMANT-APPELLANT

v.

B & B INDUSTRIES

EMPLOYER

and

ALL AMERICA INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Lorenzo J. Cicchiello, Esq., Cicchiello & Cicchiello, 582 West Main Street, Norwich, CT 06360.

The respondents were represented by Robert G. Oliver, Esq., Mulvey, Oliver, Gould & Crotta, 83 Trumbull Street, New Haven, CT 06511.

This Petition for Review from the March 12, 2002 Finding and Dismissal of the Commissioner acting for the Second 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 claimant appealed from the March 12, 2002 Finding and Dismissal of the Commissioner acting for the Second District. The claimant alleges that he suffered an injury to his back that arose out of and in the course of his employment. The claimant contends that on October 28, 2000 while working at a job site he was part of a work crew engaged in backfilling work on a concrete retaining wall. The particular construction project was creation of a parking lot. The claimant contends that while standing on the concrete construction wall he was struck by the blade of an excavator and knocked into a ditch.

Formal hearing proceedings were held before the trial commissioner in which the claimant and witnesses who were present at the job site at the time of the alleged injury testified. Following these proceedings the trier found that the claimant’s testimony was not credible and dismissed the claimant’s claim. She noted in her ruling that she did not find the claimant a credible witness.

The pertinent facts in addition to those noted above are as follows. The respondent employer is a roofing construction firm owned by two brothers Timothy and Kevin Bialowas. At the time of the alleged incident Timothy Bialowas was operating an excavator with a steel bucket to deposit dirt around the retaining wall. The claimant was standing on the retaining wall directing where Mr. Bialowas should deposit the dirt contents of the steel bucket. The claimant contends that the excavator bucket struck him in his lower back and knocked him into a ditch. He further alleges that he was in the ditch for a couple of seconds but was able to get up and out of the ditch on his own and back up on the retaining wall. Mr. Bialowas, the excavator operator testified that the steel bucket never hit the claimant.

Also testifying before the trial commissioner was Peter Labenski, a witness to the incident. Mr. Labenski testified that “he witnessed a man, later revealed to be the Claimant, jump from the retaining wall to the dirt pile toward the excavator after nearly being struck by the excavator bucket.” Finding, ¶ 9. This witness also testified that the person he saw jump from the wall, laughed and then got back up on the retaining wall. See August 8, 2001 Transcript, p. 79.

The trial commissioner concluded that the claimant failed to meet the burden of proof that he suffered an injury that arose out of and in the course of his employment on October 28, 2000. The ultimate issue presented for review is whether the trial commissioner erred in concluding as she did. The appellant argues, inter alia, that the trier’s factual findings were against the weight of the evidence and unsupported by the evidence.

On appeal we do not engage in de novo review. The facts and conclusions of the trial commissioner will not be disturbed unless contrary to law, without evidence or based on unreasonable or impermissible factual inferences. Fair v. Peoples Savings Bank, 207 Conn. 535 (1988). The conclusion reached by the commissioner in this matter is totally dependent upon the weight and credibility she assigned to the testimony of witnesses. Weighing the evidence presented and making credibility determinations are functions of the commissioner that are solely within her purview.

The trial commissioner “is the sole arbiter of the weight of the evidence and the credibility of witnesses in workers’ compensation cases,” Keenan v. Union Camp Corporation, 49 Conn. App. 280, 286 (1998); and thus it was within his discretion to find that the claimant’s testimony was not credible. In his appeal, the claimant is essentially seeking to retry the facts of this case, which this board may not do. O’Reilly v. General Dynamics Corporation/Electric Boat Division, 52 Conn. App. 813, 816 (1999).

Freeman v. UTC/Sikorsky Aircraft, 4225 CRB-4-00-4 (May 4, 2001), aff’d, 68 Conn. App. 904 (2002) (per curiam). Our review of the record at hand fails to show that the trial commissioner abused her discretion in making her factual determination and in reaching her ultimate conclusion. Calderoni v. B & T Contractors, 4207 CRB-5-00-3 (May 4, 2001).

We therefore affirm the March 12, 2002 Finding and Dismissal of the Commissioner acting for the Second District.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.