1 G.D.A.P. 113
TIMOTHY FURMAN Appellant
v.
OFFICE OF THE DIRECTOR OF REGULATION Appellee
No. GDCA-AA-21-501
Mohegan Gaming Disputes Court of Appeals
February 23, 2022
DECISION ON APPEAL
McNamara, J.
In this license appeal, the Defendant, Office of the Director of Regulation, challenges the decision of the Gaming Dispute Trial Court, Guernsey, C.J., to reinstate the Plaintiff's gaming license. On April 13, 2020, the Mohegan Tribal Gaming Commission, hereafter "MTGC" sent a letter to the Plaintiff, Timothy Furman, suspending his gaming license. The Plaintiff appealed the suspension of his gaming license, a hearing was conducted, and the Plaintiff was given an opportunity to provide evidence and testimony relative to his license suspension. At the conclusion of the hearing, Hearing Officer Gregory Burnell, Assistant Director, MTGC, upheld and made permanent the suspension of the Plaintiff's gaming license on grounds that he made "untruthful and misleading statements on a Mohegan Sun Employee Accident Report regarding the cause of a back injury," as well as "untruthful and misleading statements at Backus Hospital and Concentra." The Plaintiff appealed his license suspension to the Gaming Disputes Trial Court.
The Gaming Disputes Trial Court determined that the substantial rights of the Plaintiff were prejudiced and reversed the permanent suspension of the Plaintiff's gaming license. The Court ordered the Office of the Director of Regulation to reinstate the Plaintiff's gaming license.
This Court agrees with the Trial Court that the hearing officer's administrative findings, inferences, and conclusions, were not supported by substantial evidence, and the Plaintiff's gaming license should be reinstated.
I. FACTUAL BACKGROUND
The Plaintiff, Timothy Furman, was employed as a Police Officer for the Mohegan Tribe and was working in such capacity on February 29, 2020. On said date, the Plaintiff was assigned to assist in the transport of a patron through the casino, and at some point, while transporting said patron, he lost his grip and fell or stumbled forward. At the time of the incident, the Plaintiff denied being injured.
On the morning of March 3, 2020, the Plaintiff went for a jog. Later, at the administrative hearing, the Plaintiff testified that he did not injure his back while jogging. On the evening of March 3, 2020, the Plaintiff was assigned to work at the Mohegan Sun Arena for a basketball tournament. He worked with Officers Holt and Dolan as well as Sgt. Leary. Both Officer Holt and Officer Dolan testified at the administrative hearing that the Plaintiff's back was bothering him at the beginning of his shift.
During the arena shift, the Plaintiff took a break and met his wife. During this break, the Plaintiff sat down on a bench and when he stood up, he experienced severe back pain and a muscle spasm.
The next day, the Plaintiff sought medical attention at Backus Hospital. He elected to pursue workers' compensation benefits. When Officer Holt discovered that the Plaintiff was out of work due to a work-related injury, he informed several police officers of a conversation he had with the Plaintiff where the Plaintiff shared that he injured his back while jogging off-duty.
An investigation commenced, which included a review of the surveillance video of the incident with the patron, a review of the Plaintiff's medical records at Backus Hospital and Concentra, as well as the Plaintiff's Employee Accident Report dated March 5, 2020. On April 13, 2020, the Office of the Director of Regulation suspended the Plaintiff's gaming license and the Plaintiff appealed said suspension.
A hearing on the Plaintiff's license suspension was conducted on June 2, 2020 and June 11, 2020. At the conclusion of the hearing, Hearing Officer Gregory Burnell, Assistant Director of Regulations, MTGC, made the following conclusions:
(1) MTGC suspended Officer Furman's license based on alleged untruthful and misleading statements Officer Furman made on a Mohegan Sun Employee Accident report regarding the cause of a back injury that Officer Furman claimed to have sustained on February 29, 2020, while working as a Police officer for the Mohegan Tribal Police Department.
(2) Based on the above-detailed findings of fact and law, a preponderance of the evidence demonstrates that Officer Furman did make untruthful and misleading statements, and as a result, his continued licensing would pose a threat to the public interest, the interest of the Mohegan Tribe and/or to the effective regulation of gaming, as a Police Officer is required to exhibit a high level of honesty, integrity and truthfulness.
In supporting the above conclusions, the Hearing Officer emphasized that the Plaintiff admitted that he provided untruthful and misleading statements on a Mohegan Sun Employee Accident Report regarding the cause of his back injury, which was supported by his testimony and the testimony of witnesses. The Hearing Officer noted that while the Plaintiff originally claimed that he fell and hurt his back on February 29, 2020 in his workers' compensation claim and at the hospitals where he sought treatment (as indicated in the hospital reports), he later admitted to the MTGC that he did not fall on February 29, 2020. Additionally, the Plaintiff testified that he told Master Sergeant Rief minutes after the incident on February 29, 2020, that he was not injured during the incident. The Plaintiff further testified that on Tuesday, March 3, 2020, that he did not know why his back was hurting him. However, while at Backus Hospital on March 4, 2020, the Plaintiff attributed the cause of his back pain to the February 29, 2020 incident.
The Hearing Officer also detailed the Plaintiff's testimony where Officer Furman explained that he went running on Tuesday, March 3, 2020, immediately before the overtime detail where he reported to co-workers that his back was bothering him. During this overtime detail, the Plaintiff experienced excruciating pain after standing up during a break. The Hearing Officer highlighted that the Plaintiff did not attribute his excruciating pain to anything that happened that day (running and standing for hours), but instead attributed his injury to the incident of February 29, 2020. The Hearing Officer found that it is more believable that the Plaintiff hurt his back on the day he experienced excruciating pain than during an incident that happened three days earlier in which he did not fall and subsequently denied being injured.
Hearing Officer Burnell issued the following order:
"1. Based on the above-detailed facts and conclusions, I find by a preponderance of the evidence that the decision to suspend Officer Furman's license is supported by a preponderance of the evidence;
2. I find that by a preponderance of the evidence that Officer Furman made untruthful and misleading statements on a Mohegan Sun Employee Accident Report regarding the cause of a back injury. This violates the Licensing of Employees "Regulations"; Section 3 (C) requiring the person to exhibit good character, honesty, and integrity. Officer Furman made untruthful and misleading statements at Backus Hospital and Concentra as well as contradicting the testimony of Officers Dolan and Holt. Therefore, the suspension of Officer Furman's gaming license suspension is upheld, and the license is revoked permanently."
The Plaintiff filed an appeal of the license suspension to the Gaming Disputes Trial Court. The Trial Court reviewed the facts and findings of the Hearing Officer and came to the conclusion that the substantial rights of the Plaintiff had been prejudiced, including the right to have his claim of injury adjudicated by the Mohegan Workers' Compensation Commission without risking the loss of his gaming license. [1 ] The Court determined that there was no substantial evidence to support the Hearing Officer's conclusions that the Plaintiff's statements attributing his back injury to the February 29, 2020 incident were "untruthful and misleading," and that allowing the Plaintiff to continue possessing a gaming license would pose a threat to the effective regulation of gaming.
The Court further opined that seeking to find workers compensation fraud in a case where the injury is admitted but arguably occurred three days after claimant believed it occurred, when both accidents were clearly work-related, does nothing to further the Commission's goal, even if the Plaintiff was mistaken as to the date. [2 ]
The Trial Court held that pursuant to MTC Sec. 3-224(j), the substantial rights of the Plaintiff had been prejudiced and reversed the permanent suspension of the Plaintiff's gaming license.
The Office of the Director of Regulation filed an Appeal of the Trial Court's decision to the Gaming Disputes Court of Appeals.
II. STANDARD OF REVIEW
This Court has adopted a standard of review for an appeal of a Gaming Disputes Trial Court's decision, and it has long been established that an Appellate Court is bound to accept the lower court's finding unless the findings are clearly erroneous. Dimartino v. Richard, 263 Conn. 639, 822. A.2d 205 (2003). Under the "clearly erroneous" standard of review, a factual finding by the Trial Court must stand unless clearly erroneous as a matter of law. The function of this Court is not to determine whether the Trial Court could have reached a different conclusion other than the one reached, but rather, could it reasonably have reached the conclusion that it did. Allen v. Nissley, 184 Conn. 539, 542, 440 A.2d 578 (1984).
Moreover, for a finding of fact to be clearly erroneous, there must be no evidence in the record to support it or, despite the supporting evidence, the appellate court is left with the definite conviction that a mistake was made. Connecticut National Bank v. Giacomi, 242 Conn. 17, 70 (1997).
III. DISCUSSION
This Court has recognized the deference to be accorded to the Hearing Officer's decision:
"The Court shall not substitute its judgment for that of the Agency as to the weight of the evidence or question of fact. The Court shall affirm the decision of the Agency unless the Court finds that substantial rights of the person appealing have been prejudiced because the administrative findings inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the Agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.' MTC Sec. 3-224(j).
This notwithstanding, it is the obligation of the reviewing Court to ensure that there exists in the record substantial evidence to support such findings:
'Judicial review of an administrative agency decision requires a Court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. The evidence must be substantial enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. If the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding . . . the decision must be upheld. The obvious corollary to the substantial evidence rule is that a Court may not affirm a decision if the evidence in the record does not support it." Kochachy v. Office of the Director of Regulation, 1 G.D.R. 115, 117 (2003), quoting Bialowas v. Commissioner of Motor Vehicles, 44 Conn App. 702 709.
It is the Defendant's contention that the Office of Director of Regulation's suspension of the Plaintiff's gaming license was well within the statutory authority of the agency. It is their position that the suspension and revocation of the Plaintiff's license was supported by a preponderance of substantial, non-medical evidence.
The Plaintiff claims that the Trial Court did not commit clear error when it determined that the record lacked the substantial evidence necessary to support the Hearing Officer's conclusions. Furthermore, the Plaintiff claims his substantial rights were prejudiced, including the right to have his claim of injury adjudicated by the Mohegan Workers' Compensation Commission without risking loss of his gaming license. Therefore, the issues before this Court are whether the Trial Court committed clear error when it determined the Hearing Officer's conclusions lacked substantial evidence and determined that the substantial rights of the Plaintiff had been prejudiced.
The Trial Court carefully and meticulously examined the Hearing Officer's findings and conclusions as well as the Employee Accident Report. First, the Trial Court found that the Hearing Officer's own finding that the Plaintiff's injury or reinjury happened at work on either February 29th or March 3rd, or a combination of both, confirmed that there was not substantial evidence that the Plaintiff attempted to commit workers' compensation fraud.
Thus, the issue before this Court appears to be whether the Plaintiff's injury occurred while he was at work on February 29th or March 3rd, or when he was jogging on March 3rd.
While Officer Holt initially made the representation that the Plaintiff may have injured his back while jogging, there is no other evidence in the record to support such a claim. The Hearing Officer held that it was more likely that the Plaintiff was injured on March 3rd when he experienced excruciating pain than during an incident that happened three days earlier in which the Plaintiff did not fall and denied being injured. (Conclusion 3). The Trial Court determined that this conclusion was in reference to the incident at the ECC Basketball game where the Plaintiff felt pain in his back when he rose from a bench. This conclusion was also supported by Dr. Miller's statement that, "I do not believe that his history of running has anything to do with the cause of his present symptoms as the running would be a recommended exercise to help prevent recurring symptomatology."[3 ]
The Trial Court correctly held that it made no difference whether the Plaintiff injured his back while on the job on February 29th or March 3rd, or whether the injury resulted from a combination of both incidents. Both incidents were work related and the Plaintiff could pursue a claim for workers' compensation benefits. There is no direct evidence in any of the Hearing Officer's findings or conclusions that the Plaintiff suffered his back injury while jogging on March 3rd. There was no medical evidence submitted that attributed the Plaintiff's injury to his jog on March 3rd.
If the Office of the Director of Regulation believed the Plaintiff's injury occurred while jogging on March 3, 2020, it had recourse with the Mohegan Workers' Compensation Commission. They could have denied his claim, required the Plaintiff to undergo a respondent medical exam or request a Commissioner's Exam. A formal hearing before a Commissioner could have been conducted where evidence and testimony was received and eventually, the claim resolved. It is this Court's opinion that this is what the Mohegan Tribal Council envisioned when the Mohegan Workers' Compensation Commission was created.
The Court is also not persuaded by the Defendant's position that the Plaintiff's continued licensing would pose a threat to the public interest, the interest of Mohegan Tribe and/or the effective regulation of gaming. The Trial Court found that there was no substantial evidence in the record to support a finding of intent to commit fraud. This Court concurs.
It is very possible that the Plaintiff's injury may have occurred on February 29th or at the ECC Basketball game or very likely a combination of both. In either event, there was insufficient evidence to determine the Plaintiff intended to defraud the Workers' Compensation Commission.
The Trial Court correctly determined that there was insufficient evidence in the record that would support the finding that the Plaintiff made untruthful and misleading statements as to the cause of his back injury, and that his continuing licensing would pose a threat to the public interest.
The function of this Court is not to determine whether the Trial Court could have reached a different conclusion other than the one reached, but rather could it reasonably have reached the one that it did. Allen v. Nissley, 184 Conn. 539, 542, 440 A.2d 578 (1989). In this respect, the Trial Court carefully reviewed the record and determined that the record was devoid of any substantial evidence to support the Hearing Officer's conclusion that the Plaintiff's statements were untruthful and misleading and that he posed a threat to the effective regulation of gaming. Furthermore, the Trial Court's determination that substantial rights of the Plaintiff had been prejudiced is supported by the evidence.
The Decision of the Gaming Dispute Trial Court is affirmed.
---------
Notes:
[1 ] See Trial Court Decision at pg. 11.
[2 ] See Trial Court Decision at pg. 12.
[3 ] Employee Exhibit B.
---------