Roberto v. Partyka Chevrolet, Inc.

The claimant was represented by David Kelly, Esq., Montstream & May, LLP, 655 Winding Brook Drive, Glastonbury, CT 06033.

The respondents were represented by William E. Holtz, Esq., Mullen & McGourty, 2 Waterside Crossing, Suite 102A, Windsor, CT 06095.

This Petition for Review from the February 2, 2010 Finding and Dismissal of the Commissioner acting for the Third District was heard August 27, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals from a Finding and Dismissal of his claim for benefits. The trial commissioner did not find the testimony of the claimant credible and did not find he had sustained a compensable injury. This constitutes a factual determination by the trial commissioner. We find that there was no legal error in the trial commissioner’s decision. Therefore we affirm the Finding and Dismissal and dismiss this appeal.

The trial commissioner found the following facts at the conclusion of the Formal Hearing. The claimant had commenced employment with the respondent Partyka Chevrolet on June 6, 2008. He had had prior back surgeries. The claimant testified that he had sustained a slip and fall injury entering his office while working at Partyka and entering his office on September 16, 2008. Another Parytka employee, Joe Gallagi, testified that he saw the claimant lying on the floor in his office on that day. The claimant was transported by ambulance to Yale-New Haven Hospital following the September 16, 2008 incident.

The circumstances of the claimant’s employment were considered by the trial commissioner. Mr. Gallagi, Partyka’s general manager, testified that he told the claimant on September 12, 2008 he was terminated from his position as an internet manager and offered the claimant a sales position. That day, the claimant and Mr. Gallagi agreed that the claimant would either be at work the next day and take the sales position or he would leave the company. Mr. Gallagi testified that the next day the claimant did not show up for work and could not be reached on the phone. Another Partyka employee, John Hickey, told Mr. Gallagi that “Doug had called him and said that he’s considering the job but he hurt his back moving a computer the day before.”. Mr. Hickey told Mr. Gallagi the claimant said his back hurt and he would be in on Monday. Finding, ¶ 8.

Mr. Hickey testified by way of deposition. He testified that he had been called by the claimant on September 13, 2008 and the claimant informed his employer he would be missing work. Mr. Hickey testified that the claimant told him he had been picking up his computer tower at home and he pulled his back out, and “might have dislocated a pin or something.”. Finding, ¶ 9. Mr. Gallagi testified that on the day of the incident he saw the claimant, but was late for the meeting and when he sat down, heard “an obnoxiously loud noise, very very loud” and went over to find the claimant lying on the floor. Finding, ¶ 10. Mr. Gallagi testified the noise was “tinny” and sounded as if a steel desk was lifted up and slammed on the ground. Id.

Patrick Mastroianni, M.D., who had examined the claimant on behalf of the respondents, testified via deposition. Dr. Mastroianni testified that he relied on the claimant’s statement that he was injured on September 16, 2008.1

Based on these foregoing facts the trial commissioner concluded the claimant did not suffer a back injury during the course of employment on September 16, 2008. The trial commissioner did not find the claimant fully credible and persuasive, while finding John Hickey’s testimony fully credible and persuasive. Therefore, the trial commissioner determined the claimant did not meet his burden of proof in the proceedings and dismissed the claim.

The claimant filed a Motion to Correct and a Motion for Articulation. Both motions were denied by the trial commissioner. The claimant has pursued this instant appeal.

The gravamen of the claimant’s appeal is that the trial commissioner committed error by relying on the deposition testimony of John Hickey. As the claimant views the record, Mr. Hickey did not testify in person before the trial commissioner and the claimant did testify in person. The claimant believes the respondents are being “rewarded” by the trial commissioner’s reliance on Mr. Hickey’s testimony. Claimant’s Brief, p. 3. The claimant cites no case law for this position, however.

We find this panel has already ruled on a very similar issue in a manner adverse to the claimant. In Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007), the claimant charged that it was legal error for the trial commissioner to rely on witness statements taken by an investigator for the respondents. We did not agree with this reasoning and affirmed the dismissal of the claim. The claimant in Reeve failed to object to the admission of the investigative report. Counsel for the claimant in Reeve also cross-examined the investigator at length. “As a result, our decision in Paige v. Hartford Insurance Co., 4594 CRB-2-02-12 (January 9, 2004) suggests there has been no error, as we upheld the trial commissioner when ‘in this case the claimant never raised an objection regarding the hearsay nature of the evidence.’. We also believe the ability of counsel to question Mr. Martus comports with the procedural due process concerns addressed in Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974).” Reeve, supra.

In the present case the claimant raised no objection to the introduction of Mr. Hickey’s deposition transcript as an exhibit. June 25, 2009 Hearing Transcript, p. 5. Claimant’s counsel also had the chance at the deposition to extensively cross-examine Mr. Hickey. Respondent’s Exhibit 2, pp. 15-23. Claimant’s counsel also did not seek a continuance of the formal hearing to obtain Mr. Hickey’s live testimony when it was apparent Mr. Hickey was not in attendance. August 17, 2009 Hearing Transcript, p. 108.2

In light of this record we believe that the introduction of Mr. Hickey’s testimony, and its probative value to the trial commissioner, falls squarely within the precedent in Reeve, supra. We also believe our precedent in Stiber v. Marks Total Security, 5479 CRB-4-09-7 (July 8, 2010) governs this issue where this panel cited the statute establishing how workers’ compensation hearings are to be conducted.

The decision in this case turned on one simple decision by the trial commissioner. After personally observing the claimant testify as to the manner in which he claimed to have been injured, the trial commissioner decided that Mr. Hickey’s version of events was more believable. Findings, ¶ B & D. This is a decision that an appellate body cannot revisit. Burton v. Mottolese, 267 Conn. 1, 40 (2003). “Where the veracity of a witness’ factual representations is at issue, the trier’s credibility assessment is virtually inviolable on appeal.”. Canevari v. C.R. Gibson Co., 4231 CRB 7-00-5 (May 14, 2001). See also, Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008) and Baker v. Hug Excavating, Inc., 5443 CRB-7-09-3 (March 5, 2010), where we held a claim must be dismissed when the trial commissioner determines the claimant lacks credibility, notwithstanding whether credibility issues exist as to the respondents’ witnesses.

In many respects this case is on all fours with Smith v. Salamander Designs, LTD, 5205 CRB-1-07-3 (March 13, 2008). In Smith the claimant also asserted he had fallen at work where there were no eyewitnesses. We held that under those circumstances “[t]he trial commissioner had no obligation to accept the claimant’s testimony at face value.”. Id. The trial commissioner in Smith also decided that since the claimant’s narrative was not credible, he could not rely on medical testimony reliant on the claimant’s narrative. We upheld this determination, citing Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008). As Dr. Mastroianni relied on the claimant’s narrative as to the mechanism of injury in his opinion, the precedent in Abbotts properly allowed the trial commissioner to discount his opinion if the claimant was not credible.

The claimant also alleges error from the denial of his Motion to Correct and his Motion for Articulation. He argues that the trial commissioner did not sufficiently explain his basis for the Finding & Dismissal. We find no error. We may properly infer from th. trial commissioner’s decision to deny the claimant’s Motion to Correct that the commissioner did not find the evidence submitted probative or credible Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (per curiam).3 We also find no error in the trial commissioner’s denial of the claimant’s Motion for Articulation. The claimant cites Biehn v. Bridgeport, 5232 CRB-4-07-6 (September 11, 2008) for the proposition ‘“An articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification.’. Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 204 (2003), citing Miller v. Kirschner, 225 Conn. 185, 208 (1993).”. Biehn, supra. We do not find Biehn supports the claimant’s Motion for Articulation, however Biehn involved issues of statutory interpretation, not witness credibility. We did not grant the claimant the relief she sought in Biehn. Finally, we point out that it is a generally unambiguous determination as to whether or not a witness is credible. Buonafede v. UTC/Pratt & Whitney, 5499 CRB-8-09-9 (September 1, 2010).

The claimant had the burden of establishing his injury was the result of an incident sustained while employed by the respondent. The trial commissioner did not find his testimony on this point credible. We cannot, as an appellate panel, revisit the credibility determinations of the trial commissioner. We find no error, and herein affirm the Finding and Dismissal. The appeal is dismissed.4

Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.

1 The trial commissioner did not reference Dr. Mastroianni’s earlier opinion (Respondent’s Exhibit 3) as to possible causation of the claimant’s injuries and we may infer that due to the witness’s deposition testimony (Respondent’s Exhibit 9) the trial commissioner decided to discount any opinion as to causation in toto. BACK TO TEXT

2 Whether Mr. Hickey’s deposition transcript should be relied on for the decision in this case was a decision for the trial commissioner. See Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009) “decisions regarding the relevance and remoteness of evidence in workers’ compensation proceedings fall solely within the discretion of the trier of fact” and LaMontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008) “a trial commissioner has broad discretion to determine the admissibility of evidence, and an evidentiary ruling will not be set aside absent a clear abuse of that discretion.” BACK TO TEXT

3 Among the rejected corrections was a demand that the trial commissioner find the respondent’s defense lacked credibility as one witness they presented, Seth Brown, was allegedly a former embezzler. Claimant’s Motion to Correct, ¶ 2. Since the trial commissioner made no representation at all in the Finding & Dismissal as to any reliance whatsoever on Mr. Brown’s testimony, we fail to understand why the trial commissioner was obligated as a matter of law to grant this correction. A trial commissioner cannot be caused to correct a finding he or she did not make. BACK TO TEXT

4 The respondents initially filed a Petition for Review and Reasons for Appeal from the Finding & Dismissal. The respondents have not filed any additional pleadings in this matter and we deem these issues abandoned on appeal. Christy v. Ken’s Beverage, Inc., 5157 CRB-8-06-11 (December 7, 2007). BACK TO TEXT