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Stewart v. Tunxis Service Center

CASE NO. 1684 CRB-6-93-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 1, 1995

PAUL STEWART

CLAIMANT-APPELLANT

v.

TUNXIS SERVICE CENTER

EMPLOYER

and

SECOND INJURY FUND

RESPONDENTS/APPELLANTS

APPEARANCES:

The claimant was represented by Allen J. Segal, Esq., Segal & Laska, 29 Park Street, Plainville, CT 06062.

The respondent Second Injury Fund was represented by Loida D. John-Nicholson, Esq., Assistant Attorney General, P. O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.

This Petition for Review from the March 26, 1993 Finding and Award of the Commissioner acting for the Sixth District was heard April 29, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has appealed from the March 26, 1993 Finding and Award of the Commissioner acting for the Sixth District. In that Finding and Award the trier denied the claimant’s request for temporary total disability benefits but ordered the payment of benefits pursuant to § 31-308a. The claimant took the instant appeal and presents the following issues for review (1) whether the trier’s failure to issue his decision within 120 days of the conclusion of the hearings as required by § 31-300 deprived the trier of jurisdiction, and (2) whether the trier erred in failing to grant the claimant’s Motion to Correct.1

We first consider whether the trier’s failure to comply with the time requirements of § 31-3002 deprived the commissioner of jurisdiction. We think this tribunal’s decision in Stevens v. City of Hartford, 8 Conn. Workers’ Comp. Rev. Op. 134, 831 CRD-1-89-2 (1990) is applicable. In Stevens, the Compensation Review Division relied on the Supreme Court’s ruling in Besade v. Interstate Security Services, 212 Conn. 441 (1989). In Besade, the Supreme Court concluded that a period of delay between the hearings and the Commissioner’s decision did not necessitate a new trial unless the appellant could demonstrate prejudice due to the delay. While the language in § 31-3003 considered by the Besade court differs from the language at issue here and in Stevens, we believe that a showing of prejudice must be demonstrated by an appellant before the invalidation of the trier’s decision will be considered. Nowhere in claimant’s brief does he assert any claim of prejudice.

We thus conclude that as the claimant did not assert any prejudice due to the delay, the commissioner’s decision stands if valid in other respects.

The Claimant also contends that the trier erred in failing to grant his Motion to Correct. The claimant’s Motion to Correct states in pertinent part:

“The claimant requests the Commissioner to correct his findings in the following manner:

1. To eliminate finding number 17 as it was found without evidence.

2. To include a finding in regard to Claimant’s exhibit B - letter from his employer terminating him which was admitted into evidence.

3. To include a finding in regard to Claimant’s exhibit C - as to claimant’s restrictions during an eight hour work day which was admitted and undisputed.”

We note that paragraphs 2 and 3 of claimant’s Motion to Correct fail to state what correction the claimant specifically seeks and thus, we are unable to determine if the conclusion of the trier would be altered. All the claimant asks for is a finding, he fails to state what finding he seeks.

As to his correction proposed in paragraph 1, even if paragraph 17 is eliminated, the trier’s conclusion that the claimant was not totally disabled is still supported by other factual findings. Specifically we note that paragraph 19 of the Commissioner’s Findings supports a finding that the claimant was not totally disabled. (See Claimant’s Exhibit F.) Thus, the trier’s denial of claimant’s Motion to Correct was not error.

We therefore affirm the Finding and Award of the Commissioner acting for the Sixth District.

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

1 The Second Injury Fund also filed a Petition for Review in the above matter. None of the issues raised in the Fund’s appeal were discussed in its brief. The Fund’s appeal is therefore deemed abandoned. See Practice Book Sec. 4065. See also, Vigneri v. Utility Industrial Co., 1433 CRB-2-92-6, (decided Sept. 9, 1994); Campbell v. Manchester Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 151,1182 CRD-5-91-2 (1992) BACK TO TEXT

2 § 31-300 provides in pertinent part: “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion the commissioner shall send to each party a written copy of his findings and award.” BACK TO TEXT

3 § 31-300 (Rev. to 1985) provided: “As soon as may be after the conclusion of any hearing the commissioner shall send to each party a written copy of his award.” BACK TO TEXT

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