5359 CRB-1-08-6(2009). Williams v. State of Connecticut Judicial Branch.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5359 CRB-1-08-6(2009). Williams v. State of Connecticut Judicial Branch CASE NO.5359 CRB-1-08-6COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSION OCTOBER 8, 2009TROY B. WILLIAMS CLAIMANT-APPELLANT v. STATE OF CONNECTICUT JUDICIAL BRANCH EMPLOYER SELF-INSURED RESPONDENT-APPELLEE and GAB ROBINS OF NORTH AMERICA, INC. INSURANCE ADMINISTRATORAPPEARANCES: The claimant was represented by Francis P. Cipriano, Esq., 1220 Whitney Avenue, P.O. Box 6503, Hamden, CT 06517. The respondent was represented by Kenneth H. Kennedy, Jr., Esq., Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120. This Petition for Review from the June 11, 2008 Finding of Dismissal of the Commissioner acting for the Third District was heard on March 27, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.OPINION JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 11, 2008 Finding of Dismissal of the Commissioner acting for the Third District. We find no error, and affirm the decision of the trial commissioner.(fn1)The following factual findings are pertinent to our review. The claimant began working for the State of Connecticut Judicial Branch as a Juvenile Transportation Officer ("JTO") in 1996. His duties included transporting juvenile detainees to court appearances, medical appointments and other appointments. The claimant was trained in restraint and crisis intervention techniques, and was expected to control detainees when their behavior became physically threatening to themselves or to others. The State of Connecticut has designated the position of JTO as hazardous duty. On May 6, 2005, the claimant and a co-worker returned to the Hartford Detention Center after having transported some detainees to court. The claimant, who had the authority to remain at the facility as a transitional staff member when he was not actively engaged in detainee transportation activities, went to the gymnasium where a gym class for the detainees was being held. In his role as a transitional staff member, the claimant was authorized to supervise the detainees and to restrain or control them if necessary. The claimant was also allowed to participate in detainees' basketball games, and did so on this occasion, joining a four-on-four basketball game with seven detainees. The gym class was being supervised by Darrell Brown, a substitute gym teacher. At one point during the game, the claimant knocked the ball out of the hands of one of the detainees who was fifteen years old, stood approximately six feet tall and weighed 180 pounds. The claimant walked away from the detainee after hitting the ball out of his hands. Although the claimant had "a clear opportunity," Findings, ¶ 30, to continue walking away from the detainee, the claimant turned around when the detainee said something and then began walking back towards the detainee until they stood chest to chest. A physical confrontation was initiated by the claimant when he lunged toward the detainee and grabbed him under his arms, at which point the claimant slipped and almost fell to his knees. While continuing to hold onto the detainee, the claimant regained his footing and again lunged forward. Angel Soler, a fellow Juvenile Transport Officer, and Germaine Fleeting, a Juvenile Detention Officer, intervened and succeeded in restraining the detainee. Following the encounter with the detainee, the claimant met with Jennifer Bott, the Deputy Superintendent of the Hartford Juvenile Detention Center, and Walter Crain, the shift supervisor at the Center at the time of the incident. Ms. Bott testified that the claimant was angry and disrespectful at the meeting and she asked the claimant to leave the facility. The claimant was ultimately terminated from his position as a JTO. As a result of the physical encounter with the detainee, the claimant has instituted a claim for injuries sustained to his back, neck, right wrist, ribs, and right knee. The respondent has asserted an affirmative defense pursuant to § 31-284(a) C.G.S., alleging that "the unauthorized and unnecessary force used by the claimant constituted willful and serious misconduct which was outside the scope of his employment as a JTO." Findings, ¶ p. 42.(fn2) Although the claimant testified that there was a merely "normal amount of incidental contact" during the game, Findings, ¶ 23, the respondent has claimed "that the claimant was playing aggressively and at a level that was too intense for a juvenile staff member." Findings, ¶ 24. The claimant also argued that the technique he employed against the detainee represented an unplanned restraint in an emergency situation and the measures he took were necessary to protect himself. However, a number of witnesses testified that the claimant initiated the physical contact with the detainee, in direct contravention of detention center policy which requires that staff members avoid physical confrontations with the detainees whenever possible. The witnesses also testified that the claimant failed to use proper restraint and crisis intervention techniques once the confrontation was underway. Based on the testimony of the parties, along with a review of a video of the basketball game taken by a surveillance security camera and a sequence of time-marked photos derived from the video which were submitted into evidence (See Respondent's Exhibit 15), the trial commissioner concluded that although the claimant had the opportunity to walk away from the detainee and avoid a physical confrontation, instead, the claimant "actually turned and walked back to confront the detainee chest to chest and then lunged and grabbed him under the arms." Findings, ¶ K. The trial commissioner also determined that "contrary to his training and experience," Findings, ¶ L, the claimant did not utilize the proper techniques for restraint and crisis intervention but, rather, "used unauthorized and unnecessary force against the detainee. . . ." Findings, ¶ M. The trial commissioner concluded that the "claimant's confrontation with a juvenile detainee constituted willful and serious misconduct by a Juvenile Transportation Officer, pursuant to C.G.S. 31284(a)," and dismissed the claim.(fn3) The claimant filed a voluminous Motion to Correct, to which the respondent objected; the bulk of the corrections were denied by the trial commissioner save for several scrivener's errors, and this appeal followed.(fn4) Essentially, the claimant contends that the trial commissioner's decision to dismiss the claim on the basis of a finding of willful and serious misconduct constituted error, as did the trier's failure to draw a negative inference relative to the alleged spoliation of the evidence; to wit, the erasure of the contents of the second surveillance camera operating in the detention center gym at the time of the incident. The claimant also alleges that the destruction of this possibly pertinent evidence resulted in the denial of the claimant's due process rights. We begin by reciting the well-settled standard of deference we are called upon to apply to a trial commissioner's findings and legal conclusions.

. . . the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner's role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene's (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier's legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v.

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