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CASE NO. 4704 CRB-8-03-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 5, 2004
A1 AUTO DETAILING
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by Carlos Santos, Esq., Polinsky, Santos, Siegel & Polinsky, 890 West Boulevard, Hartford, CT 06105.
The respondent was represented by J. David Griffin, 59 Elm Street, Suite 215, New Haven, CT 06510.
The Second Injury Fund was represented by Sarah Posner, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the July 8, 2003, Finding and Award of the Commissioner acting for the Sixth District was heard February 27, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, A1 Auto Detailing, has appealed from the July 8, 2003, Finding and Award of the Commissioner acting for the Sixth District. We affirm the decision of the trial commissioner.
The pertinent facts are as follows. The claimant was employed by the respondent, A1 Auto Detailing on October 26, 1999. The claimant’s job duties consisted of washing and detailing cars, picking up cars for detailing and moving vehicles in and out of the respondent’s facility. The claimant testified on October 26, 1999 it started to rain and he began to push the respondent’s motorcycle into the garage. A co-worker suggested the claimant get on the vehicle to move it. The claimant explained that he got on the vehicle with the keys in the ignition, the co-worker put the bike in gear and the vehicle took off. Unfortunately, the claimant was unable to control the motorcycle and it struck the side of the garage and injured the claimant’s right leg. The claimant testified the respondent had not given him any directions or instruction regarding moving or driving the motorcycle.
The respondent, Ralph Richard testified that he was the owner of the motorcycle. He said the motorcycle was extremely dangerous. The bike had no brakes, had a powerful engine and did not have steering capabilities. Mr. Richard said he gave all of his employees’ explicit instructions not to start up or drive the motorcycle. The employees were only to manually push it. Sean Piatek, the co-worker who assisted the claimant with the motorcycle testified at the formal hearing. Mr. Piatek stated it was made “clear” that the motorcycle should not be started, moved or driven because it was dangerous. Findings, ¶ 17. However, he also testified that he had started up and driven the motorcycle on one prior occasion when the respondent was off premises. The trial commissioner found that the claimant’s testimony was more persuasive than the respondent and Mr. Piatek’s testimony and found the injury to be compensable.
The respondent appealed the Findings and Award on the basis that the injury should not have been compensable because it was a result of the claimant’s misconduct and/or horseplay. Under § 31-284(a) C.G.S. an injury will not be compensable if the respondent can prove it was the result of an employee’s serious or willful misconduct. Generally, injuries that are caused by an employee’s horseplay are not compensable under the Workers’ Compensation Act. Simmons v. Bonhotel, 40 Conn. App. 278, 282-283, n. 3 (1996).
The trial commissioner is charged with resolving inconsistencies or contradictions in the evidence. Miller v. Kirshner, 225 Conn. 185, 198-99 (1993); Fair v. People’s Savings Bank, 207 Conn. 535, 538-42 (1988). We will not disturb a trial commissioner’s conclusions which are based on his or her assessment of the weight and credibility of the evidence presented. Neal v. UTC/Pratt and Whitney, 10 Conn. Workers’ Comp. Rev. Op. 163, 1199 CRD-8-91-3 (1992).
The trial commissioner found the claimant’s injuries were not the result of willful misconduct and/or horseplay. Findings, ¶ E. The trier had conflicting evidence regarding the facts surrounding the injuries. According to the claimant’s testimony he was simply moving the respondent’s motorcycle out of the rain, a task reasonably associated with the claimant’s job duties. According to the respondent and a co-worker, the claimant had been warned not to start the motorcycle, although the co-worker had also done so in the past. Given this conflicting evidence, the trier found the claimant’s testimony to be more persuasive and we see no reason to disturb these findings. As the conclusions reached from the facts found did not result from incorrect applications of law or from inferences illegally or unreasonably drawn from those facts, those conclusions must stand. Fair, supra, 539.
Therefore, we affirm the July 8, 2003, Finding and Award of the Commissioner acting for the Sixth District.
Commissioners A. Thomas White, Jr. and Charles F. Senich concur.
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