Opinion
CASE NO. 5359 CRB-1-08-6
OCTOBER 8, 2009
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.
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.
OPINION
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.
We note that several motions for extensions of time and one motion for continuance were filed and granted during the pendency of this appeal.
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. 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.
Section 31-284(a) C.G.S. states, in pertinent part: "An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.
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.
We note the trial commissioner, in his "Rulings on Claimant's Motion to Correct" dated August 11, 2008, changed the language of the concluding paragraph of his Finding and Dismissal, and we have quoted the corrected version here.
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. 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.
In his Motion to Correct, the claimant identified a number of distinct issues which he contends represent reversible error, including such matters as the trial commissioner's failure to determine as a matter of law that a detention center staff member's decision to use an unplanned restraint is a "judgement [sic] call," Appellant's Brief, p. 2; the trier's failure to find that the detainee was disciplined by the detention center following the incident, id.; and the trial commissioner's failure to determine that the respondents did not proffer any evidence disputing the claimed injuries or the claimant's entitlement to benefits. Id., at 4. While we generally do not seek to alter counsel's statement as to the issues presented for review, in light of the fact that there appears to be considerable overlap among the issues presented, we will examine them in a fashion we believe is more cogent.
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. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).
We first turn our analysis to the allegation of error relative to the trial commissioner's decision to dismiss the claim on the basis that the claimant's aggressive initiation of a physical confrontation with the detainee constituted willful and intentional misconduct. In Gonier v. Chase Companies, Inc., 97 Conn. 46 (1921), the court defined misconduct as:
any improper or wrong conduct. And when such misconduct is not trivial but grave in character, it becomes the serious misconduct of the statute, that is, improper conduct of a grave and aggravated character. Whether misconduct is serious is to be determined from its nature and not from its consequences. . . . Misconduct which exposed the [claimant] to serious injury would be serious misconduct. Not only must the misconduct be of this grave character, but under the statute it must also be wilful. By wilful misconduct is meant either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to himself by him who is guilty of it. (Internal citations omitted.)
Id., at 55-56.
The Gonier court also determined that "wilful and serious misconduct means something more than ordinary negligence." Id., at 56. Further, "[n]o misconduct which is thoughtless, heedless, inadvertent or of the moment, and none which arises from an error of judgment, can be `wilful and serious misconduct.' . . . Nor will every violation of a statute or a public regulation, or a rule, regulation, order or instruction of an employer, constitute wilful and serious misconduct." (Internal citations omitted.) Id. Finally, the Gonier court stated,
[w]hether one violation or repeated violations will constitute willful and serious misconduct must depend upon the circumstances, notably upon the nature of the misconduct and the character of the statute, regulation, rule, order or instruction violated. Each case must be weighed and determined by its own circumstances. . . . similarly, what is wilful misconduct is a question of fact.
Id., at 57.
Thus, in Gonier, the court concluded that the claimant's decision to continue working as a painter despite an unfortunate tendency to succumb to occasional spells of unconsciousness did not rise to the level of serious or willful misconduct, because the claimant "did not continue to work knowing at this time of his liability to suffer one of these spells of unconsciousness which would be likely to cause him to fall, so that his course could not be found to have been done purposely with knowledge. Neither could it be said that the circumstances show on his part a reckless disregard of consequences for his own safety." Id., at 58.
Similarly, in Mancini v. Scovill Mfg.Co., 98 Conn. 591 (1923), the court declined to find a claimant's decision to ignore the specific advice of her employer relative to correct procedures while using a manufacturing device constituted serious misconduct because there existed some question as to whether the claimant had ever been told the safety reasons behind the employer's instructions. Thus, while the court determined "[i]t was improper conduct for [the claimant] to violate the instruction of the foreman," id., at 600, the claimant's decision to do so did not rise to the level of serious misconduct, which "could not be found until it appeared that the plaintiff fully knew and appreciated that her misconduct would expose her to serious injury, and, so knowing and appreciating, did the act in violation of her instruction, from which her injury resulted." Id.
The claimant was instructed to use forceps, rather than her fingers, while placing and removing pieces of brass onto a machine designed to crush the pieces into the desired shape.
In sharp contrast, our Supreme Court did uphold a finding of willful and serious misconduct in Paternostro v. Arborio Corp., 56 Conn. App. 215 (1999), cert. denied, 252 Conn. 928 (2000), involving a claimant who, while employed by the respondent as a member of a road crew, was struck by an automobile and killed in the process of correcting a sign pattern on Interstate 84. The claimant "parked the company truck on the left shoulder of the highway and, in contravention of company policy, walked across three highway lanes to fix a sign located on the right shoulder of the highway." Id., at 216. The record contained evidence that certain items found inside the claimant's truck along with a blood sample drawn from the claimant indicated the claimant's blood alcohol level may have been in excess of the legal limits at the time of the accident. Testimony also revealed that the claimant, "[a]s a member of the sign crew and as the union steward . . . was trained and familiar with the safety procedures for erecting the warning signs." Id. The Paternostro court found, consistent with the trial commissioner's findings, that the claimant's consumption of alcohol "to the point of intoxication during work hours," id., at 218, constituted willful and serious misconduct, as did his decision to "[walk] across the highway, in violation of the employer's policy, at a time when traffic was heavy and at a location where visibility was diminished." Id.
Noting (as had the Gonier court) that "[w]ilful misconduct may be either intentional or reckless misconduct," Paternostro, supra, at 221, citing Caraher v. Sears, Roebuck Co., 124 Conn. 409, 415 (1938), the court went on to further define reckless misconduct as "highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . ." Dubay v. Irish, 207 Conn. 518, 533 (1988), quoting W. Prosser W. Keeton, Torts (5th Ed.) 34, p. 214. The Dubay court also observed that "[t]he state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them." Id., at 532, quoting Mooney v. Wabrek, 129 Conn. 302, 308 (1942).
Similarly, in Colon v. Savin Brothers, Inc., 12 Conn. Workers' Comp. Rev. Op. 299, 1574 CRB-1-92-11 (June 13, 1994), this board upheld the trial commissioner's decision to dismiss a claim after finding the claimant's injuries arose from his effort to resist arrest and therefore constituted willful and serious misconduct. Noting that "an employee sustaining an otherwise compensable, on-the-job injury will be disqualified from compensation because of the wilful and serious nature of his misconduct which causes that injury", id., at 301, we concluded "the claimant's injury here was the result of his intentional interference with a police officer and the events followed as a result of that criminal conduct. The trial commissioner therefore properly disqualified the claimant from benefits under Sec. 31-284(a)." Id.
A plainclothes officer apparently attempted to arrest the claimant following a misunderstanding at a construction site at which the claimant had been working as a flagman.
Turning our analysis to the matter at bar, we note at the outset that the record is rife with testimony supporting the inference that the claimant, in spite of his training and presumed awareness of detention center policies, did not comport himself in a manner consistent with those policies. For instance, Germaine Fleeting, a juvenile detention officer who witnessed the incident, testified that the claimant's "first duty" was to back away from the situation, June 13, 2006 Transcript, at 49-50, and that the claimant should never have allowed himself to come face to face with the claimant. Id., at 50. Fleeting also testified that staff members are instructed to verbally deescalate tense situations and then call upon other staff members for intervention. Id., at 48. Fleeting described the encounter between the claimant and the detainee as a "tussling match," id., at 37, and testified that the claimant grabbed the detainee's clothing, which is not a proper restraint. Id., at 49.
Angel Soler, a juvenile transportation officer who was also working at the detention center on the date on May 6, 2005 and witnessed the incident, testified that during a confrontation, staff members are instructed to remain an arm's length away, and create a "side angle" between themselves and the detainee, id., at 86, the purpose of which is to create sufficient space to get around the detainee. Id., at 103. Soler remarked that the confrontation between the claimant and the detainee and the actions taken by the claimant did not resemble any technique that he had ever been taught, id., at 98, and based on what he saw, the claimant initiated the physical contact with the detainee. Id., at 102.
Jennifer Bott, the deputy superintendent of the facility, testified that the goal of the facility is to use the least restrictive alternative available, and protocol requires that if a staff member needs to restrain a detainee, a supervisor should be summoned. September 25, 2006 Transcript, p. 75. Ms. Bott explained that the purpose of crisis intervention and physical management training is "not to have to put your hands on a child whenever possible," March 21, 2007 Transcript, p. 54, and "whenever you can remove yourself from the situation that's the ultimate goal." Id. Ms. Bott also reiterated that all restraints are performed from the back, and that "[n]o restraint is from the front." Id., at 62. After viewing the surveillance tape, Bott concluded the restraint used by the claimant was not "an appropriately sanctioned technique" September 5, 2006 Transcript, p. 78, and her assessment of the claimant's approach was that "it appeared to be very aggressive." Id. Bott testified that the claimant "walked up into the child's personal space and then more or less lunges and grabs the child to the best of my recollection." December 28, 2006 Transcript, p. 73. Bott also stated that it appeared to her as if the claimant "fell down, got back up and went after the child again." Id. Bott remarked that the claimant seemed to gloat when he knocked the ball out of the detainee's hands, March 21, 2007 Transcript, p. 57, and that the claimant appeared to be "wholly engaged" in the basketball game rather than merely supervising it as required by protocol. Id., at 74. She acknowledged that the claimant's decision to turn back towards the detainee after having started to walk away played a role in the decision to terminate the claimant for the unauthorized use of force. Id., at 49.
Bott stated, "[w]hat I saw in the photo was him leaving the ground doing an amount of air between him and the floors, slapping the ball out of the detainee's hand, walking away and slapping his chest that he just won over a detainee." March 21, 2007 Transcript, p. 57.
Bott remarked, "[c]learly in a half court gym you're able to remove yourself from the situation." March 21, 2007 Transcript, p. 65.
Mark Guasta, who was on temporary assignment supervising the transportation unit at the time of the incident and was therefore the claimant's acting supervisor, appeared in this matter and also testified by deposition. During the deposition, he was provided an opportunity to review the pictures taken from the surveillance video, and observed that at the beginning of the incident in question, the claimant moved his right foot up to stand squarely facing the detainee, "right into the child's personal space." Respondent's Exhibit 12, p. 81. (See also Respondent's Exhibit 15.) Guasta testified that this maneuver was incorrect in light of detention center training, and commented in greater detail as to the purpose and mechanics of the "side angle" approach as a preferred defensive posture. Id. Guasta explained that the only authorized method to approach a detainee is from the back because this technique allows a staff member to use the child's momentum to turn, avoid any blows, and get behind the child. Respondent's Exhibit 13, p. 332. Guasta also observed that the claimant, instead of remaining in the detainee's personal space, should have been walking backward and instructing the detainee to calm down, Respondent's Exhibit 12, p. 83, given that there was approximately forty feet of space into which the claimant could have retreated. Id., at 80. Such a maneuver would have afforded another staff member the opportunity to come up behind the detainee and intervene. Respondent's Exhibit 13, p. 331. Guasta stated, "[t]he last thing you want to do is put your hands on a kid," Respondent's Exhibit 13, at 183, and indicated that the children in the facility frequently threaten the staff and call them names, but "[w]e don't just go around restraining kids for threatening behavior or disruptive behavior or calling names or getting into space. We don't do that. If we did, we'd be on the floor all the time." Id., at 270.
Guasta described this technique as standing with a "leading trailing foot," which provides both leverage and the ability to move if necessary, rather than "standing with your feet square, which is an aggressive stance and also a more dangerous stance for you." Respondent's Exhibit 12, p. 82.
Guasta described the encounter between the claimant and detainee as "wrestling," Respondent's Exhibit 12, p. 95, and testified that the claimant's maneuvers with the detainee did not represent sanctioned techniques. Id., at 96. Guasta also testified that he believed the claimant appeared angry and intended to hurt the detainee, because it was not necessary for the claimant to continue going after the detainee after the other staff members had subdued him. Id., at 97. Guasta described the resulting collision between the claimant, the detainee and the other staff members as a "scrum," for which he faulted the claimant's decision to continue pushing the detainee. Id., at 99. In fact, he testified that it appeared the other staff members were forced to put the detainee down onto the floor because of the claimant's actions, id., at 100, and that in his capacity as a supervisor, he believed the claimant was using unnecessary force. Id., at 101.
While viewing the sequence of surveillance photos, Guasta commented that the claimant "is going after the child. He is aggressively going after the child, when he should be getting himself away from the situation." Respondent's Exhibit 12, p. 96.
In reply to counsel's inquiry as to whether the claimant was behaving like a Juvenile Detention officer when he attempted to grab the detainee, Guasta replied in the negative, explaining, "as a juvenile transportation officer or Juvenile Detention officer, you're charged with [the detainees'] safety and security. His behaviors don't fall within that framework. It's causing his — his behaviors on the basketball court prior to this, when he knocked the child over, going for a ball, were a very aggressive act. His behavior in knocking the ball out was an aggressive act. He was not acting as what I would call `a good role model, a good transportation officer or detention officer.'" Respondent's Exhibit 12, p. 101.
The claimant testified extensively on his own behalf, essentially arguing that the confrontation with the detainee constituted an emergency situation in which he was forced to use an "unplanned restraint." January 7, 2008 Transcript, p. 41. The claimant described his initial action as "tapping" the ball out of the detainee's hands, id., at 70, and conceded that he did turn around and begin walking towards the detainee "[s]lightly," id., at 72, because he was under the impression that the detainee had a "basketball gripe." Id., at 73. The claimant asserted that he attempted to de-escalate the situation by telling the detainee "you need to give me some space and get out of my face." Id., at 80. However, the detainee did not back down, and it was the claimant's testimony that he was required at that point to use the amount of force necessary to reassert control in what had become a dangerous situation. Id., at 85-86. The claimant described the sequence of events as, ". . . I was playing basketball one minute, the next minute I got a kid at point blank range threatening me." Id., at 84-85.
We note that the claimant's testimony became somewhat confusing at several points during the trial. For instance, when asked on direct why he didn't just back up, he replied, "[t]his guy's telling me verbal things like, do it again, not taking my lawful order directed to back down and now you're pointing. Why would I look away. I've got my eyes fixed on you. The next thing coming from my experience if you're pointing from the side and just human instincts of preservation I'm not going to get hit by you if that's what you intend to do. I'm reading the physical signs. I'm reading the nonsense of it. I didn't do anything for you to be here. You skipped the conflict stage. You didn't tell me that there was anything wrong as you approached me. You got in my chest like you want to intimidate me . . ." January 7, 2008 Transcript, pp. 81-82.
The claimant also denied that he continued to move towards the detainee after he had slipped, testifying that he had not regained control and was simply hanging onto the detainee and any additional forward momentum was "a continuation of my initiation." Id., at 93. The claimant admitted there was no one in front of him when he began walking away from the detainee. February 4, 2008 Transcript, p. 40. Although the claimant agreed he was not taught to come face to face with a detainee, but rather to take a forty-five degree angle to the right or left, id., at 43, the claimant disagreed that standing face to face with the detainee was "confrontational." Id., at 45. The claimant also testified that placing his hands on the detainee's chest was not a "taught" technique but rather an emergency technique. Id. at 46. Similarly, he denied pushing or lunging at the detainee, id., at 51, but, rather, argued that grabbing the detainee under the arms was a sanctioned maneuver even though he didn't know if it was discussed in their training manual and he could not remember who taught him to use the technique. Id., at 52-53. The claimant also stated that he could not back away from the detainee because the detainee was "bearing down" on him and pointing, id., at 49, and he didn't ask the other officers present for assistance because he felt he "was the one in immediate harm" and he didn't "have to defer for assistance under those circumstances." Id., at 57. The claimant denied losing his temper, id., at 56, and argued that he was ultimately justified in initiating the restraint he used when the detainee disobeyed his "lawful order" to "stand down" and resumed pointing his finger in the claimant's face. Id., at 54-55.
The claimant confirmed that he had in fact received training in restraint techniques, in that the full text of his response at this juncture was, "I don't recollect who taught me, but I went to the training classes." February 4, 2008 Transcript, p. 53. See also January 7, 2008 Transcript, p. 86.
Having closely reviewed the extensive testimony of the parties involved in this matter, we find that the evidence contained therein provided more than ample support for the trial commissioner's findings that the claimant, in clear derogation of his training and the detention center's explicit policies, chose to respond with unauthorized force to the detainee's provocation and initiate a physical confrontation, thereby committing willful and serious misconduct. The claimant's colleagues and supervisors consistently testified that the actions taken by the claimant on the basketball court were improper and not sanctioned by any detention center policy. The evidence provided strongly supports the inference that the claimant could have walked away from the altercation, and indeed that such a course of action would have been the proper de-escalation technique. The testimony also supports the inference that the claimant, by virtue of his training, was aware of proper restraint techniques and deliberately chose to disregard those techniques, thereby placing himself, the detainee, and the other individuals assembled in the gym in danger. The record therefore supports the inference that the claimant "fully knew and appreciated that [his] misconduct would expose [him] to serious injury, and, so knowing and appreciating, did the act in violation of [his] instruction, from which [his] injury resulted," Mancini, supra, at 600, and "the circumstances show on his part a reckless disregard of consequences for his own safety." Gonier, supra, at 58.
While we concede the claimant's point that none of the testifying witnesses were qualified as "experts," we find that by virtue of the training and qualifications of these witnesses, they were sufficiently competent to address the issue of the proper use of restraint techniques.
In light of the evidence contained in the record, we therefore find that the trial commissioner's conclusion that "[t]he claimant used unauthorized and unnecessary force against the detainee which constituted willful and serious misconduct for a Juvenile Transportation Officer," Findings, ¶ M, in no way constituted error. The trial commissioner specifically found that "[t]he claimant had an opportunity to walk away from Paul to avoid a physical confrontation and to help diffuse and de-escalate the situation," Findings, ¶ J, but the claimant instead "actually turned and walked back to confront the detainee chest to chest and then lunged and grabbed him under the arms." Findings, ¶ K. The record supports the trier's inference that the claimant made a deliberate choice to initiate a physical confrontation with the detainee, and we affirm the trier's conclusion of law that this action on the part of the claimant satisfied the threshold requirement for willful and serious misconduct. "The defense of wilful and serious misconduct is an affirmative one. The burden of establishing it is on the employer. . . . Since the finding is one of fact, the court on review will not hold this conclusion erroneous unless the facts clearly show this to be so. . . ." (Internal citations omitted.) Gonier, supra, at 58.
In addition, although the claimant attempted to justify his actions by arguing that he was presented with an emergency situation requiring a judgment call and resulting in an unplanned restraint, he obviously did not succeed in convincing the trier of same. "If the trier is not persuaded by the claimant's evidence, there is nothing that this board can do to override that decision on appeal." Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000). Moreover, it is clear the trial commissioner predicated his decision on his assessment of the credibility of the various parties testifying in this matter, and this board cannot second guess such determinations on appeal.
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. (Internal quotation marks omitted.)
Burton v. Mottolese, 267 Conn. 1, 40 (2003), quoting Briggs v. McWeeny, 260 Conn. 296, 327 (2002).
The claimant also raises as a claim of error the trial commissioner's failure to draw an adverse inference from the respondent's failure to provide the footage from the second surveillance camera which was operating in the gym at the time of the incident. "In brief, the intentional spoliation of the second CD of the work episode held exclusively by respondents, which type of evidence respondents submitted on a selected basis and encouraged the Trial Commissioner to rely on in sustaining their defense to claimant's action for compensation, played a large part in denying claimant his day in court by being afforded a fair trial." (Emphasis in the original.) Appellant's Brief, p. 34. In support of his position, the claimant cites Secondino v. New Haven Gas Co., 147 Conn. 672 (1960), in which the court, while discussing a jury charge which called for an adverse inference relative to the failure of one of the parties to call a certain witness, in turn cites Ezzo v. Geremiah, 107 Conn. 670 (1928) for the proposition, "[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause." Secondino, supra, at 675, quoting Ezzo, supra, at 677.
For a more nuanced look at the issue of spoliation specifically, we turn to Beers v. Bayliner Marine Corp., 236 Conn. 769 (1996), which is quoted extensively in a case cited by both parties in this matter, Rizzuto v. Davidson Ladder, Inc., 280 Conn. 225, 251 (2006). While the Beers court did state that, "the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it," id., at 775, the court went on to clarify that, "[m]ore specifically, we conclude that an adverse inference may be drawn against a party who has destroyed evidence only if the trier of fact is satisfied that the party who seeks the adverse inference has proven the following. First, the spoliation must have been intentional. . . . By this, we do not mean that there must have been an intent to perpetrate a fraud by the party or his agent who destroyed the evidence but, rather, that the evidence had been disposed of intentionally and not merely destroyed inadvertently." (Internal citations and footnotes omitted.) Id., at 777.
The Beers court went on to state, "[s]econd, the destroyed evidence must be relevant to the issue or matter for which the party seeks the inference. . . . Third, the party who seeks the inference must have acted with due diligence with respect to the spoliated evidence. For example, the spoliator must be on notice that the evidence should be preserved." Id., at 778. The Beers court concluded, "[f]inally, the jury, if it is the trier of fact, must be instructed that it is not required to draw the inference that the destroyed evidence would be unfavorable but that it may do so upon being satisfied that the above conditions have been met." Id., at 779. "It must also be noted that the inference does not `supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing a prima facie case, although it may turn the scale when the evidence is closely balanced.'" (Internal quotation marks omitted.) Id., quoting Doty v. Wheeler, 120 Conn. 672, 679 (1936).
Bearing in mind the foregoing standard articulated by the Beers court, we turn to an examination of the testimony in this matter relative to the respondent's actions with respect to the second surveillance camera. Jennifer Bott testified that the security cameras tape over themselves approximately every thirty days, September 5, 2006 Transcript, p. 37, but the facility does have the ability to save portions of the tape in one hour increments. Id., at 38. Bott also explained that the tapes can only be viewed on the Judicial Department security system. March 21, 2007 Transcript, pp. 42-43. Bott testified that an assistant was responsible for downloading the tapes in this matter and Bott could not recall if she had ever viewed the contents of the second tape. February 4, 2008 Transcript, pp. 100-101. However, she also testified that the angle of the second camera showed the opposite side of the gym from where the incident occurred, id., at 101, and stated, "[m]y testimony would be that if there was something on that camera we would have saved it so obviously we'd have full coverage of what did or didn't take place. That's standard procedure. That's what we would do for any incident." Id., at 104. Under repeated questioning, Bott emphatically asserted that she "never" would have allowed the tape from the second camera to be taped over if it had shown the incident. Id., at 110.
We note that Mark Guasta, at his deposition, also testified that because of the second camera's angle, he did not think it would have afforded a view of the players during the incident. Respondent's Exhibit 13, p. 314.
The trial commissioner did not choose to draw the adverse inference in this matter, from which we may infer the three prongs articulated by the Beers standard were not met. This is so despite the claimant's contentions that footage from the second camera would have clearly demonstrated that the detainee had put his hand up. Id. at 78. The decision whether to draw such an inference remains a factual determination; as the Beers court pointed out, the adverse inference cannot take the place of material facts. We find that Jennifer Bott's testimony provided sufficient support for the trial commissioner's decision not to draw the adverse inference and we will not second-guess his conclusions regarding her credibility.
We do note that had the footage from the second tape been preserved, this issue would not have arisen.
Finally, as mentioned previously herein, the claimant submitted a voluminous Motion to Correct, most of which was denied by the trial commissioner, save for several corrections involving scrivener's errors. We have reviewed this motion and find the claimant's contentions of error to be without merit, given that the proposed corrections represent either an effort to relitigate issues which had already been disposed of at trial or an attempt to introduce extraneous information which would have had no bearing on the trier's ultimate conclusions. As this board has previously observed, we "may not alter a commissioner's findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts." Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998), quoting Knoblaugh v. Greenwood Health Center, 13 Conn. Workers' Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (February 6, 1995).
"A Motion to Correct also may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings." Pallotto, supra, quoting Knoblaugh, supra. See also Webb v. Pfizer, Inc., 14 Conn. Workers' Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers' Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (November 7, 1994). As we have often remarked, the Motion to Correct is not the appropriate vehicle for a wholesale relitigation of the matter at bar. We therefore find no error in the trial commissioner's refusal to grant the corrections sought, as "[t]he [claimant] cannot expect the commissioner to substitute the [claimant's] conclusions for his own." D'Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003).
Having found no error, the June 11, 2008 Finding of Dismissal of the Commissioner acting for the Third District is hereby affirmed.
Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.