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Berube v. Tim’s Painting

CASE NO. 5068 CRB-3-06-3



MARCH 13, 2007












The claimant was represented by Brian Mahon, Esq., Weigand, Mahon and Adelman, P.C., 636 Broad Street, P.O. Box 2420, Meriden, CT 06450.

The respondent-employer was represented by Stephen Jacobs, Esq., Jacobs & Jacobs, P.C., 71 Catlin Street, P.O. Box 193, Meriden, CT 06450.

The Second Injury Fund was represented by Lisa Guttenberg Weiss, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-120.

These Petitions for Review from the March 9, 2006 Finding and Award of the Commissioner acting for the Third District were heard September 22, 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. It is a tenet of appellate jurisprudence that on appeal the facts of a case have been previously determined by the trier of fact. This limits our role to that of ascertaining if the law was properly applied. In this appeal the respondents have focused their arguments towards the factual determinations of the trial commissioner, who concluded the claimant’s herniated disc was the result of an injury sustained while in the respondent Tim’s Painting employ. We are limited to a determination of whether the trial commissioner had an evidentiary basis for his factual findings. Concluding that he did, we must dismiss this appeal.

Both parties agree that the claimant was working in the summer of 2003 power washing a home in Branford. It is also agreed that at some point one summer afternoon, he slipped and fell off part of the roof at that work site. From these agreed facts the story diverges into two different accounts.

The claimant filed a claim for Chapter 568 benefits on August 20, 2003 based on the following narrative. He testified that he was an employee of the respondent Tim’s Painting, earning $15 per hour for a 40 hour work week, and that on July 7, 2003 he fell off the peak of the roof onto a flat section of the roof, thereby sustaining arm and back injuries. He continued working for some time thereafter. He went to the emergency room at MidState Medical Center on August 11, 2003 complaining of back pain. Subsequent examination revealed the claimant had a herniated disc. He underwent back surgery on August 19, 2003. Attributing the back injury to the fall off the roof, he seeks payment of his medical bills, a payment of temporary total disability benefits from August 11, 2003 to March 1, 2004, and an award for permanent partial disability of the lumbar spine.

The respondents Tim’s Painting and the Second Injury Fund, challenge virtually the entire narrative. A representative of Tim’s Painting filed a Form 43 on September 12, 2003. They disputed that the claimant was an employee, and argued he was an independent contractor.1 They challenge the date of the accident and the severity of the accident. They also argue that since the claimant continued to perform heavy labor immediately after the accident and for a number of days thereafter, the fall at the Branford residence could not have been the cause of the disc herniation. In support of this premise, they have advanced a number of alternative theories as to how the claimant injured his back, suggesting it was due to a sneezing episode at home, passing a kidney stone, or playing with his nephew. They presented evidence at the hearing concerning each of the alternative explanations for the claimant’s injury.

Formal hearings were held before the Commissioner acting for the Third District. Both parties submitted a joint exhibit concerning the medical bills and reports for the claimant’s back ailments. The claimant was not examined by a respondent’s examiner or a commissioner’s examiner, and none of the treating physicians were deposed or questioned at the hearing. A great deal of the hearing involved efforts to challenge the veracity of the claimant and the respondent-employer. Conversely, the medical evidence was essentially unchallenged.

The commissioner issued his Finding and Award on March 9, 2006. He concluded the testimony of the claimant was credible and he sustained a left hand and back injury in the course of his employment on or about July 7, 2003. He found the claimant was entitled to temporary total disability payments from August 11, 2003 to March 1, 2004 based on an average weekly wage of $600. He also found the claimant had a 13-2/3% impairment of the lumbar spine and was entitled to a permanent partial award. He found the claimant’s medical bills causally related to the accident and directed that they be paid. Finding the respondent, Tim’s Painting, lacked workers’ compensation insurance he directed the respondent Second Injury Fund under § 31-355 C.G.S. to honor any benefits not paid by the employer.

Both the employer and the Second Injury Fund filed a timely appeal from the Finding and Award. Both also filed a Motion to Correct. These motions were denied by the trial commissioner. The gravamen of their appeal is that the trial commissioner disregarded the weight of the evidence that the claimant’s disc herniation was due to a non-work related incident.

In reviewing this instant decision, our standard of review is deferential to the finder of fact. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004).

Once a trial commissioner makes a determination as to whether an injury was sustained in the course of employment, the Compensation Review Board has a limited scope of review over that determination. As we recently held in Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006).

The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. (Citations omitted; internal quotation marks omitted.) citing Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 665-666 (2006).

There is long standing precedent that our board has a limited scope of review over both the legal and factual determinations that a trial commissioner reaches in his findings following a formal hearing. As we held in Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002);

All we may do is review the trier’s findings to determine whether there is any evidence in the record to support them, and to determine whether the trier might have omitted from her findings material facts that are truly admitted or undisputed. Id., Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71 1859 CRB-5-93-9 (May 12, 1995). Similarly, we may disturb the legal conclusions of the trial commissioner only if they result from an incorrect application of the law to the facts found, or from an inference unreasonably or illegally drawn from those facts. Irizarry [v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002)], supra, Mosman [v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001)], supra, Warren [v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001)], supra, citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Id.

At the formal hearing, both parties concentrated on damaging the credibility of the adverse party to the proceedings. Faced with conflicting stories, the trier of fact must resolve the discrepancy by determining one version of events is reliable and the other version is not. The trial commissioner herein believed the claimant. It was his prerogative to do so.

In Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) we reiterated the maxim “the trial commissioner is the sole person empowered to evaluate a witness’s credibility” and cited this portion of the Supreme Court’s opinion in Burton v. Mottolese, 267 Conn. 1 (2003).

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. Burton, Id., 40.

The respondents point to the lapse of time between the fall down incident and the claimant’s hospitalization and assert this makes it unreasonable to rely on the claimant’s narrative. We have made clear such lapses of time between the original incident and medical treatment pose a factual issue for the trial commissioner to resolve. Canevari v. C.R. Gibson Co., 4231 CRB 7-00-5 (May 14, 2001). In Canevari we cited a number of cases outlining that it is the claimant’s obligation under these circumstances to present expert testimony to support his claim. See Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001). “. . . the board properly concluded that the plaintiff could not prove causation for her leg injuries in the absence of expert medical evidence” Id., 451. See also Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). The respondents argue such expert testimony regarding causation does not appear in the record, nor expert testimony as to permanent impairment. Upon review, we find such evidence was presented to the trial commissioner.2

Joint Exhibit 1 for the April 25, 2005 hearing is a May 7, 2004 letter from C. Robert Biondino, M.D., who was one of the claimant’s treating physicians. Dr. Biondino specifically links the claimant’s back injuries and permanent impairment to the accident asserted by the claimant. He found the claimant “has a DRE III whole person impairment . . . and the specific lumbar spine modifier prompts a 13-2/3% impairment referable to the lumbar spine. I find that this impairment is totally related to the mechanism of injury as described by the patient.” Unlike the expert opinion ruled unreliable in DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn. App. 336 (2007), Dr. Biondino’s opinion was unequivocal and not grounded in speculation or conjecture.3

[W]hen the board reviews a commissioner’s determination of causation, it may not substitute its own findings for those of the commissioner . . . . A commissioner’s conclusion regarding causation is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law. Dengler, supra, 451. (Internal citations omitted)

As we believe Dr. Biondino’s opinion constitutes competent evidence, we cannot substitute our evaluation for that of the trial commissioner.

The respondents finally argue that their Motions to Correct should have been granted. A review of the Motions indicates they attempted to add facts to the record consistent with finding the claimant’s narrative unreliable. We believe the trial commissioner had the discretion to deny these corrections. “Where the veracity of a witness’ factual representations is at issue, the trier’s credibility assessment is virtually inviolable on appeal” Canevari, supra. Therefore, since the Motions to Correct essentially sought to interpose the respondents’ conclusions as to the facts presented, we find no error. See Liano, supra, and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002).

We believe the trial commissioner had the right to find the claimant’s testimony credible. We also believe that Dr. Biondino offered competent evidence as to the issues of causation and permanent impairment. As a result, we do not believe this Finding and Award was “clearly erroneous” and we must defer to the judgment of the trial commissioner and uphold this award.

The Finding and Award is herein affirmed. Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur in this opinion.

1 Neither respondent included this issue among their Reasons for Appeal or briefed this issue. Therefore, we deem it abandoned on appeal. BACK TO TEXT

2 The respondent Second Injury Fund argues “no medical evidence is referenced in the entire Finding and Award.” Respondents’ Brief, p. 3. The precedent in Keenan v. Union Camp Corp., 49 Conn. App. 280 (1998) is dispositive of this argument. The respondents in that case made the same argument and the Appellate Court held “it is of no moment that the commissioner’s finding and award did not patently state every piece of credible evidence or testimony that contributed to the rendering of her decision.” Id., 285. BACK TO TEXT

3 We also note that unlike DiNuzzo there is no dispute as to what injury the claimant sustained, only a dispute as to causation. There is no evidence in the record or claim on appeal that the respondents were prevented from deposing Dr. Biondino or subpoenaing him to the hearing. Having forsaken their opportunity to challenge this evidence, as a result the respondents must accept the testimony “as is,” as well as the permissible inferences which the trial commissioner drew from it. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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