Toroveci v. Globe Tool & Metal Stamping Co., Inc.

CASE NO. 5253 CRB 6-07-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 22, 2008

IGLI TOROVECI

CLAIMANT-APPELLANT

v.

GLOBE TOOL & METAL STAMPING CO., INC.

EMPLOYER

and

BERKLEY ADMINISTRATORS

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented at the trial level by Laura Ondrush, Esq., Dodd, Lessack, Dalton & Dodd, LLC, Ten Corporate Center, 1781 Highland Avenue, Suite 105, Cheshire, CT 06410. However, he appeared pro se at oral argument before this board.

The respondents were represented by Elycia Solimene, Esq., Gibson & Behman, P.C., 190 Washington Street, Middletown, CT 06457.

This Petition for Review from the July 3, 2007 Finding & Dismissal of the Commissioner acting for the Sixth District was heard March 28, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Peter C. Mlynarczyk.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals from the Finding & Dismissal of his claim asserting a compensable back injury. He alleged that his back injury occurred during the course of his employment at the respondent Globe Tool & Metal Stamping. The trial commissioner did not find the claimant’s testimony credible, nor that of the witnesses for the respondent. We conclude our precedent requires a trial commissioner to dismiss a claim when he finds the claimant lacks credibility. Therefore, we affirm the trial commissioner.

The trial commissioner found that the claimant, a native of Albania, began work for Globe Tool as a machine operator in February 2004 through a temporary employment agency and was thereafter hired by Globe Tool, on a full-time basis, in May 2004. He alleges that on March 23, 2005 he sustained a back injury lifting a barrel containing 180 pounds of metal pieces. The claimant testified he notified his supervisor the next day of the incident. The claimant filed a Form 30C in July 2005. The claimant began treating on April 11, 2005 with Dr. Roberto A. Gobbee, at which time the claimant advised Dr. Gobbee he had been suffering low back pain for six or seven months. Dr. Gobbee continued treating the claimant until June 2005, at which time the claimant was referred to Dr. Alan S. Waitze for a neurosurgical consultation.

Dr. Waitze determined after reviewing an MRI scan that the claimant had a left-sided L5-S1 disc herniation. The claimant was prescribed physical therapy and was permitted to return to work on July 9, 2005 with a 15-20 pound lifting restriction. Dr. Waitze has opined that the claimant injured his back when he went to pick up a barrel at work and the March 2005 work incident was a substantial factor in causing the herniation.

The respondent terminated the claimant from employment on August 13, 2005. He received unemployment benefits until February 2006 at which time he began job searches. He began seeing Dr. Bhavesh R. Patel for pain management on March 10, 2006 and received a series of nerve root epidural blocks. In January 2007 the claimant underwent a lumbar microdiscectomy at L4-5 on the left side.

The trial commissioner noted that the various witnesses for the respondent offered contradictory testimony as to when they were advised of the claimant’s alleged injury, certain witnesses attributing it either to a June 6, 2005 meeting where they state the claimant sought a raise or a discussion in April 2005. One witness offered inconsistent testimony on whether the claimant had advised him of back pain prior to the alleged date of injury. The claimant testified that he had gone to Paul Cote, Globe Tool’s vice president, to seek reimbursement for medical bills in April 2005. The trial commissioner, upon review of this testimony, found neither the claimant’s testimony nor that of the respondent’s witnesses credible. He also determined that opinions of the treating doctors as to causation of the herniation were not credible or persuasive. Finding the claimant failed in his burden of proof, he dismissed the claim.

The claimant, who was represented by counsel at the trial level, has pursued this appeal pro se. He filed a Motion to Correct the factual findings in this matter, which was denied by the trial commissioner. He has advanced on appeal the argument that the trial commissioner failed to properly credit favorable evidence for his case. Our ability to reverse a trial commissioner on this basis is extremely limited, however.

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.) Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006).

The trial commissioner concluded that the claimant failed to prove his case as a result of his testimony not being credible or persuasive. When the issue of credibility governs a trial commissioner’s decision, our appellate power of review is limited even further.

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 v. Mottolese, 267 Conn. 1, 40 (2003).

In reviewing the specific factual findings we note the trial commissioner herein cited medical evidence from the claimant’s original treating physician, Dr. Gobbee, that the claimant’s back pain predated the alleged March 2005 lifting incident. While Dr. Waitze opined that this incident was the cause of the back herniation, both this board and the Appellate Court have upheld the right of a trial commissioner to disregard medical evidence which he believes is rooted in an unreliable patient narrative. See Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008).

We note that the respondent did not present any medical evidence challenging the claimant’s evidence. Nonetheless, if a trial commissioner is not persuaded by the claimant’s medical evidence the claim is subject to being dismissed. Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006).

We also find no error in the commissioner’s determination that when neither the claimant nor the respondents offer credible testimony that the claim should be dismissed. We considered this same issue in Warren v. Federal Express Corporation, 4163 CRB-2-99-12 (February 27, 2001), where we held,

. . . the parties do not start from a precisely equal position, because the claimant has the burden of proving that he has sustained a compensable injury, that he has a disability, or (as in this case) that his acknowledged disability was caused by an accepted compensable injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000). To illustrate the effect of this burden, if a trial commissioner chose to believe none of the witnesses in a given case, and found all of the documentary evidence to be untrustworthy, the employer would essentially prevail by default.

The scenario as outlined in Warren is precisely what we have before us in this appeal. We find that when a trial commissioner concludes neither party is credible that as a matter of law the claim should be dismissed.

Therefore, we find no error; we affirm the Finding and Dismissal and dismiss this appeal.

Commissioners Stephen B. Delaney and Peter C. Mlynarczyk concur in this opinion.