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Lennon v. Genest Subaru Motors

CASE NO. 1589 CRB-5-92-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 28, 1994

PETER LENNON

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

GENEST SUBARU MOTORS

EMPLOYER

and

AMERICAN MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

CROSS APPELLEES

APPEARANCES:

The claimant was represented by Lindalea P. Ludwick, Esq., Sklarz, Early & Avallone, P.C., P. O. Box 1872, New Haven, CT 06508.

The respondents were represented by Jeffrey Schwartz, Esq., (formerly of) and Dominick C. Statile, Esq., Monstream & May, P. O. Box 1087, Glastonbury, CT 06033.

These Petitions for Review from the December 4, 1992 Finding and Award of the Commissioner acting for the First District was heard January 14, 1994 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JOHN A. ARCUDI, COMMISSIONER. Both respondents and claimant appeal the December 4, 1992 Finding and Award. The commissioner awarded the claimant temporary total benefits from February 23, 1988 to May 17, 1988, temporary partial §31-308(a) benefits May 18, 1988 to February 7, 1989, permanent partial disability benefits for 52 weeks beginning February 8, 1989, and §31-308a partial wage replacement benefits from February 8, 1990 to August 23, 1990.

Respondents contest the award for §31-308(a) and §31-308a benefits. They argue claimant submitted no job searches for the periods those benefits cover pursuant to §31-308(a) and §31-308a and that claimant failed to accept a return to his old job as a service manager. As to the work searches claim, we have held the use of job searches were not the exclusive evidentiary means by which availability for work could be proved. See Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 1111 CRD-4-90-9 (1992). See also, Farina v. Tony’s Auto Sales, 11 Conn. Workers’ Comp. Rev. Op. 96, 1282 CRD-5-91-8 (1993).

Here, there was testimony by the claimant as to his successful and unsuccessful attempts to find work. (April 4, 1991 Transcript of Formal Hearing p.8-13, 15-19, Claimant’s Exhibit C., Deposition of Saul Frankel, M.D., March 12, 1992 at 16.) On the basis of all the evidence the commissioner reached a conclusion which the respondents attack. Such a conclusion must stand unless contrary to law, based on unreasonable or impermissible factual inferences or without evidentiary support. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Wheat v. Red Star Express Lines, 156 Conn. 245 (1968).

On appeal, we cannot reassess the facts. Fair, supra. Our own conclusion, were we sitting as triers of the facts may have been different, but we cannot say his conclusion was so unreasonable as to justify appellate interference.

Claimant’s appeal must fail because of failure to conform to the filing deadline for the appellate brief. The reasons of appeal were also filed late, but respondents did not file a motion to dismiss on that ground on time. Therefore that violation of Administrative Regulation §31-301-21 is not the reason for our denial of the appeal. See Sager v. GAB Business Services, Inc., 11 Conn. App. 693 (1987). See also, Hankey v. Hamden Steel & Aluminum, 6 Conn. Workers’ Comp. Rev. Op. 153, 644 CRD-5-87 (1989).

Practice Book Section 4056 provides, “Any claim that an appeal ... should be dismissed, whether based on ... failure to file papers within the time allowed ... shall be made by a motion to dismiss the appeal .... Any such motion must be filed ... within ten days after the filing of the appeal ... or if the ground alleged subsequently occurs, within ten days after it has arisen....”

This matter was calendared for oral argument on January 14, 1994 and the parties were notified of that calendar October 4, 1993. The calendar indicated appellants were to file briefs by November 15, 1993. Claimant-appellant’s brief was not filed until December 9, 1993. On November 23, 1993 respondents filed a Motion to Dismiss which not only restated the earlier claim of untimely filing of the reasons of appeal but also the new ground that claimant failed to file his brief within the time set out in the Compensation Review Board’s calendar for oral argument on January 14, 1994. We grant the respondents’ November 23, 1993 Motion to Dismiss filed within ten days of the defect claimed.

We therefore affirm the December 4, 1992 Finding and Award.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 Administrative Regulation 31-301-2 provides: Within ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal. Where the reasons of appeal present an issue of fact for determination by the division, issue must be joined by a pleading filed in accordance with the rules applicable in ordinary civil actions; but where the issue is to be determined upon the basis of the finding of the commissioner and the evidence before him, no pleadings by the appellee are necessary. BACK TO TEXT

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