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Whalen v. General Building Supply Company

CASE NO. 1294 CRD-1-91-9

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 3, 1993

BARRY J. WHALEN

CLAIMANT-APPELLANT

v.

GENERAL BUILDING SUPPLY COMPANY

EMPLOYER

and

PIONEER ADJUSTMENT SERVICE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by David Mester, Esq., 10 Grand St., Hartford, CT 06106.

The respondents were represented by Kevin J. Maher, Esq., and Carolyn Signorelli, Esq., Maher and Williams, P.O. Box 269, Bridgeport, CT 06601.

This Petition for Review from the August 30, 1991 Finding and Dismissal of the Commissioner at Large acting for the First District was heard August 7, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners James J. Metro and Roberta D’Oyen.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the Commissioner at Large acting for the First District’s August 30, 1991 Finding and Dismissal of Claim. In that Finding and Dismissal the trial commissioner dismissed the claimant’s claim for a back injury alleged to have occurred on March 8, 1990.

Whether the claimant sustained a back injury which arose in and out of the course of his employment is a factual determination. As such it will not be disturbed unless contrary to law, without evidence or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). In the instant matter, the parties agreed that the claimant suffered a compensable arm injury on or about March 6, 1990. However, the testimony and evidence of the March 8, 1990 occurrence of the alleged incident were conflicting. For example, in paragraphs 5 and 6 the trier notes that the claimant testified that on March 8, 1990 he fell on his back and a co-worker came running over to ascertain if the claimant was alright. The co-worker testified that he did see claimant on the ground but the incident occurred March 6, 1990 which was the date of the claimant’s arm injury.

The trier found these and other inconsistencies in the claimant’s testimony as to the date, time and events occurring before and after the alleged fall on March 8, 1990. Thus, as the commissioner’s factual findings and conclusion were predicated on the weight and credibility accorded the evidence before him, the conclusion reached will not be disturbed. Rivera v. Guida’s Dairy, 167 Conn. 524 (1975).

Additionally, we note that the conclusion drawn by the trier was based upon his factual findings. The claimant sought correction of certain factual findings in his Motion to Correct filed May 4, 1992. Commissioner’s Finding and Dismissal was issued August 30, 1991. Administrative regulation Sec. 31-301-4 provides as follows:

If the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for, certified by the stenographer who took it, but if the appellant claims that substantially all the evidence is relevant and material to the correction sought, he may file all of it so certified, indicating in his motion so far as possible the portion applicable to each correction sought. The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.

The commissioner denied the claimant’s Motion to Correct on the basis that it was not timely filed. Clearly, a Motion to Correct filed more than eight months after the issuance of a Finding is not in comport with the time limitations set out in Administrative Regulation Sec. 31-301-4.

Further we note that even if the Motion to Correct was considered on its merits, the claimant fails to cite in the Motion to Correct where evidentiary support can be found for the corrections sought. As we have noted on previous occasions, “It is not the duty of this tribunal to cull out the specific parts of the record which might support the ...[movants] contentions.” Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 1190 CRD-8-91-3 (1992). See also, Sorrentino v. Cersosimo, 103 Conn. 426, 429 (1925); Gonzalez v. Meriden-Wallingford Hospital, 10 Conn. Workers’ Comp. Rev. Op. 127, 1178 CRD-8-91-2 (1992); Horkheimer v. Town of Stratford, 4 Conn. Workers’ Comp. Rev. Op. 139, 163 CRD-4-82 (1987). Thus, the facts as found by the trial commissioner must stand as they had a basis in the evidence before him.

We, therefore, for all the reasons stated, affirm the commissioner’s August 30, 1991 Finding and Dismissal.

Commissioners James J. Metro and Roberta D’Oyen concur.

Workers’ Compensation Commission

Page last revised: January 28, 2016

Page URL: http://wcc.state.ct.us/crb/1993/1294crb.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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