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CASE NO. 4980 CRB-7-05-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 11, 2006
MARENNA AMUSEMENTS, LLC
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by Robert Sheldon, Esq., Tremont & Sheldon, 64 Lyon Terrace, Bridgeport, CT 06604.
The respondent Marenna Amusements, LLC was represented by Kevin J. Maher, Esq., and Maribeth McGloin, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-550.
The Second Injury Fund was represented by Lawrence G. Widem, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120. The Second Injury Fund waived oral argument and requested the matter go forward on the papers.
At the trial level the respondent Crampton Enterprises was represented by Thomas J. Moriarty, Esq., 45 Yale Street, Holyoke, MA 01048-2669. However, said respondent did not participate in the appeal.
This Petition for Review from the July 14, 2005 Finding and Award1 of the Commissioner acting for the Seventh District was heard February 24, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. The instant appeal involves a dispute as to whether the claimant was an employee of the respondent when he suffered a spinal cord injury while installing an amusement ride operated by the respondent. The trial commissioner determined that he was an employee and therefore a compensable injury under Chapter 568 had occurred. The respondent has appealed. Upon a review of the evidence and law, we conclude that this is a pure question of fact; therefore, we affirm the trial commissioner and dismiss the appeal.
The trial commissioner found the following facts. The claimant had been working in the carnival business for about two years in the spring of 2002. Findings, ¶¶ 1-2. At that time both he and his live-in girlfriend Jessica Knipper were employed by Coleman Brothers. Findings, ¶¶ 3-4. In April 2002 the claimant spoke to Hector Martinez, a former employee of the respondent (a competing carnival operator), to ascertain if the respondent might pay more per week than he was earning from Coleman. Findings, ¶¶ 5-6. The claimant said that when a principal of the respondent (George Marenna, Jr.) called Mr. Martinez, Mr. Marenna, Jr. spoke to him and offered him a job with the respondent at a rate of $325 per week, plus room. Findings, ¶¶ 7-9.2 Mr. Marenna, Jr. later told the claimant he needed to quit working for Coleman so as to join the respondent. The claimant and Ms. Knipper quit Coleman Brothers on June 2, 2002. Findings, ¶¶ 11-12.
On June 3, 2002 George Marenna, Jr. offered to give the claimant a ride to the carnival site at the Greek Orthodox Church in Norwalk. The claimant obtained his own ride but required directions to the site from Mr. Marenna, Jr. Findings, ¶¶ 17-20. Upon arriving in Norwalk on June 3 Mr. Marenna’s son, George Marenna III, directed the claimant to start setting up amusement rides owned by the respondent. Findings, ¶¶ 21-25.3 The next day, George Marenna III directed the claimant to set up a carousel ride and later a Gravitron ride. Findings, ¶¶ 27-28. The claimant and his co-workers had difficulty in leveling the Gravitron and George Marenna III assisted in this effort. Findings, ¶ 30. George Marenna III then departed the Gravitron leaving the task of erecting the ride sign to the claimant and one or two other co-workers. Findings, ¶¶ 31-34. During the sign’s installation it fell on the claimant’s neck and knocked him down. Findings, ¶¶ 36-37. He immediately complained of excruciating pain and could not move his legs. Findings, ¶ 38. He was taken to Norwalk Hospital where he was treated for a burst fracture of the T-12 vertrabral body, spinal cord compression, acute traumatic paraplegia and numerous other severe injuries. He required back surgery. Findings, ¶¶ 42-46. Following the accident George Marenna Jr. gave Ms. Knipper $50 cash and told her this payment was for what the claimant had earned prior to the accident. Findings, ¶¶ 53-54. The claimant continues to have little or no mobility in his legs as a result of the accident. Findings, ¶ 50.
The trial commissioner determined in the Finding and Award of July 14, 2005 that the claimant was an employee of Marenna Amusements, LLC, Findings, ¶ A and found he was injured in the course of employment with the respondent on June 4, 2003. Findings, ¶ C. The respondent filed a Motion to Correct, which was granted in part and denied in part on August 25, 2005. The granted corrections left the Finding and Award in place. Subsequently, the respondent filed an appeal challenging the Finding and Award.
The respondent’s appeal is based on the theory that the commissioner “abused his discretion in crediting the claimant’s testimony despite denials and contradictions from multiple witnesses.” The respondent claims this determination makes the factual finding of the commissioner “clearly erroneous” mandating the granting of the respondent’s Motion to Correct and mandating dismissal of the claim. Respondent offers little legal authority for this theory, perhaps as it is directly contrary to a number of our precedents which demonstrate that the credibility of evidence, not the quantity of evidence, is the decisive factor for a trial commissioner to consider.
In Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006), the respondent attempted to argue that as they presented more medical evidence than the claimant, that the claimant’s evidence should be disregarded. This concept was rejected. “[T]hese matters go to the weight of the evidence before the trial commissioner. Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000). In this sense “weight” means the qualitative value of the evidence presented. The trial commissioner decided the claimant presented the superior qualitative evidence. “As the finder of fact, the trier has the sole authority to decide what evidence is reliable and what is not . . . .” Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004).” Id.
It is clear from the Finding and Award that the trial commissioner considered the testimony of the respondent’s witnesses. In finding that the claimant was an employee he adopted the statement of the claimant and did not credit the respondent’s denials. We upheld a trial commissioner’s Finding and Award on exactly the same grounds in Slater v. Broderick Macari, 4979 CRB-2-05-7 (June 27, 2006). “Once he concluded the claimant’s account was credible, and determined the respondent’s denial was not credible, he was bound to issue a finding that the respondent was an employer . . . .” 4
The respondent advances one claim of law, that the evidence was inadequate to support a finding that under § 31-275(9)(A)(i) the claimant was an employee. The legal argument advanced however, quickly demonstrates that disputed facts and evidence subject to interpretation were presented to the commissioner. The facts found by the commissioner were that the claimant acted at the direction and control of the respondent in assembling the Gravitron ride and attempting to lift its sign. Findings, ¶¶ 28-35. This fact pattern is indistinguishable from Mangual v. Express Tiles, 4957 CRB-1-05-6 (April 26, 2006) where we held the circumstances here demonstrate the ultimate test for deciding whether a worker is an employee under the Workers’ Compensation Act was met. “It is the right of general control of the means and methods used by the person whose status is involved.” Hanson v. Transportation General, Inc., 245 Conn. 613, 617 (1998).” While the respondent sought in their Motion to Correct to find the claimant was an independent contractor at the time of the accident, they argued at the hearing he was working for another firm at the time of the accident. In any event, the commissioner did not agree with respondent’s reasoning and determined based on the evidence presented that the respondent was in control of the worksite. Findings, ¶¶ 22-23, 28-32.
The case comes back to credibility. The trial commissioner believed the claimant had been hired to install rides for the Marenna carnival, was injured while installing these rides and did not believe the respondent’s denials. We cannot revisit that determination.5
In Liano v. City of Bridgeport, 4934 CRB-4-05-04 (April 13, 2006), we held “the trial commissioner is the sole person empowered to evaluate a witness’s credibility” citing the following reasons,
Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.” (Internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 327 (2002). Burton v. Mottolese, 267 Conn. 1, 40 (2003).
There are no facts in the record which would lead us to conclude the trial commissioner reached an incorrect conclusion as to liability. Once he concluded the claimant’s account was credible, and determined the respondent’s denial was not credible, he was bound to issue a finding that the respondent was an employer and was responsible for the June 4, 2002 accident. The conclusions drawn by him from the facts must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Tovish v. Gerber Electronics, 32 Conn. App. 595, 603 (1993). We find no such improper inferences in this case.
Therefore, the appeal is dismissed. Insofar as any benefits due the claimant remain unpaid pending appeal, interest is awarded as required by § 31-301c(b) C.G.S.
Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur in this opinion.
1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT
2 The respondent states that both Mr. Marenna and Mr. Martinez denied the call took place. The trial commissioner is not bound by this testimony and was able to credit the testimony of the claimant that the call did occur and a job offer was extended. “The commissioner’s plenary fact-finding authority provides him with a great deal of latitude in evaluating the evidence. He is not required to regard any particular statement as probative, even if it is apparently ucontradicted, nor is he required to deem any particular witness unpersuasive just because her remarks contain inconsistencies or uncorroborated assertions that tend to further her own interest.” Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000). BACK TO TEXT
3 The claimant and Ms. Knipper spent that evening in a trailer owned by Jeff Crampton of Crampton Enterprises. (Findings, ¶ 26). The respondent attempts to argue at the time of the accident the claimant was actually an employee of Crampton or an individual named John Burns. The trial commissioner specifically found the claimant was not an employee of Burns or Crampton. (Findings, ¶¶ 57-58) and this is a finding of fact which will stand on appeal. See Tovish, infra. BACK TO TEXT
4 Respondent argues that the lack of a written contract of employment should have caused the trial commissioner to find no contract of employment existed. They offer no legal precedent in support of this paradigm, and this position is untenable based on our holding in Slater, supra, where we credited testimony from the claimant that an oral contract of employment existed. BACK TO TEXT
5 In their brief, respondents also imply that if the claimant was not employed by another firm, then he had quit his former job and was some form of “volunteer” at the time of the accident. The trial commissioner did not find this argument credible and we concur in his judgment. In regards to “independent contractor” status, the evidence which reflects the claimant acted under direct supervision as part of a work crew, is inconsistent with the standard for such status under our precedents. See Altieri v. R & M Builders, 3647 CRB-5-97-7 (December 18, 1998) “[i]n the instant case, the trial commissioner found that the claimant performed his job activities at his own pace; maintained control over his work product; used many of his own tools; held himself out as a fully insured home improvement contractor; and was given a 1099 form instead of a W2-W4 form.” None of those elements appear in the record here. BACK TO TEXT
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