Freeman v. UTC/Sikorsky Aircraft

The claimant was represented by David Laudano, Esq., Law Office of Raymond W. Ganim, 2192 Main St., Stratford, CT 06497.

The respondents were represented by Richard Aiken, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the March 26, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District was heard November 21, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 26, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District. He argues on appeal that the commissioner erred by dismissing his claim. We affirm the trial commissioner’s decision.

The claimant testified that he was working for Sikorsky Aircraft on October 23, 1995, when he suffered a low back injury while turning over a mandrel.1 He acknowledged that he neither reported the injury to his foreman at the time it occurred, nor did he seek treatment at the plant medical department. The claimant also worked his entire shift on the date of injury and the three days following. He first presented himself for medical treatment on Friday, October 27, 1995. He began treating with Dr. Koch on November 1, 1995, whose reports reflect an October 24, 1995 date of injury. On December 27, 1995, the claimant filed a Form 30C, which identified the date of injury as October 20, 1995.

The trial commissioner cited testimony by Frank Minuto, the leadman who allegedly assisted the claimant in turning over the mandrel. Minuto stated that he did not recall the claimant assisting him in turning over the mandrel. Instead, he recollected that the claimant refused to assist him in that task because he was afraid of getting hurt. The trial commissioner ruled that the claimant had not met his burden of proof that he suffered a back injury arising out of and in the course of his employment, and dismissed his claim. The claimant has appealed that decision.

The burden of proving that a compensable injury has occurred rests on the claimant in a workers’ compensation case. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). The evidentiary record here consists of the testimony of the claimant and Frank Minuto, a medical report by Dr. Koch, the claimant’s Form 30C and some handwritten hospital notes. The Form 30C, the medical report, and the claimant’s testimony each assert a different date of injury. While the claimant testified that he was injured on the job, and reported that injury to Minuto immediately after it occurred, Minuto testified that he did not recall the claimant telling him that he had hurt his back turning the mandrel. November 18, 1996 Transcript, pp. 16-17, 57-58. The claimant argues on appeal that the commissioner drew unreasonable inferences from this testimony, and that she also improperly denied his Motion to Correct.

It is unquestionably the sole province of the trial commissioner to decide whether the testimony of a witness is credible or not. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). We cannot second-guess a trier’s determination that the statements of one witness were more believable than those of another. Jarvis v. Lego Systems, Inc., 15 Conn. Workers’ Comp. Rev. Op. 202, 203-204, 2210 CRB-1-94-11 (April 23, 1996). Maio v. L.G. Defelice, Inc., 13 Conn. Workers’ Comp. Rev. Op. 197, 199, 1734 CRB-5-93-5 (March 22, 1995). Here, the claimant’s Motion to Correct consists exclusively of alternative inferences that arguably could have been, but were not, drawn from the testimony of the two witnesses. The commissioner was clearly not bound to grant these.2Kish, supra.

In this case, there were discrepancies as to the dates of injury reported in the evidence and inconsistencies in the testimony of the parties. The only real evidence supporting the claimant’s version of the facts surrounding his injury was the testimony of the claimant himself. Under these circumstances, the trial commissioner was well within her authority to rule that the claimant had not met his burden of proving that he had suffered a compensable injury in the manner alleged. Jarvis, supra; Glenn v. Glenn Fence, 15 Conn. Workers’ Comp. Rev. Op. 249, 251, 2132 CRB-1-94-8 (May 21, 1996). She was certainly not required to resolve all of the inconsistencies in the record in favor of the claimant, nor was she required to believe the parts of his testimony that were not directly contested by the respondents. Kish, supra; Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997).

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 A mandrel is defined by the American Heritage Dictionary, Second Edition, as a “spindle or axle used to secure or support material being machined or milled,” a “metal core around which wood and other materials may be cast and shaped,” and a “shaft on which a working tool is mounted, as in dental drills.” The claimant’s brief describes the mandrel in question as “a steel cap that sets on top of a mold and weighs about 800 pounds and is approximately ten to twelve feet long.” Brief, p. 1. BACK TO TEXT

2 For example, the claimant stresses in his Motion to Correct and his brief that Minuto admitted that he may have forgotten that the claimant reported an injury. However, Minuto was fairly insistent that he would have recommended that the claimant seek medical attention if he had reported an injury, and only acknowledged that it was possible he could forget such a thing after intense prodding by respondents’ counsel in the form of what was substantially a hypothetical. Transcript, pp. 58-59, 66-70. The trier was absolutely not required to construe this as an admission by Minuto that he had probably been told about the injury, but had simply forgotten because the claimant had not sought medical attention right away. BACK TO TEXT