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Mendoza v. Daniel Raposo d/b/a Raposo Construction et al.

CASE NO. 2172 CRB-7-94-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 26, 1996

JULIAN MENDOZA

CLAIMANT-APPELLEE

v.

DANIEL RAPOSO d/b/a RAPOSO CONSTRUCTION

EMPLOYER

RESPONDENT-APPELLANT

and

STAMFORD HOUSING AUTHORITY

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

FRANK B. HALL

SELF-INSURED ADMINISTRATOR

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Albert Desrosiers, Esq., Cousins & Johnson, 2563 Main St., Stratford, CT 06497.

The respondent Raposo Construction was represented by Mark Kovack, Esq., Gilbride, Tusa, Last & Spillane, 31 Brookside Drive, P. O. Box 658, Greenwich, CT 06836.

The respondent Stamford Housing Authority was represented by Richard Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.

The Second Injury Fund was represented by Brewster Blackall, Esq., and Matthew B. Beizer, Esq., Assistant Attorneys General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 7, 1994 Finding and Award of the Commissioner acting for the Seventh District was heard June 23, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent Daniel Raposo d/b/a Raposo Construction (Raposo) has petitioned for review from the October 7, 1994 Finding and Award of the Commissioner acting for the Seventh District.1 He argues that the trial commissioner improperly found certain facts and failed to make findings of other facts in her Finding and Award. We affirm the trial commissioner’s decision.

Prior to discussing the merits of Raposo’s appeal, we must first address the numerous Motions to Dismiss and related objections filed by the claimant. Raposo filed a total of three petitions for review on this appeal: an October 14, 1994 petition for review from the October 7, 1994 Finding and Award; an October 19, 1994 petition for review from a finding and dismissal dated October 11, 1994 (which appeal was withdrawn two months later); and a November 14, 1994 petition for review from the November 8, 1994 denial of Raposo’s Motion to Correct. The Reasons for Appeal were filed on October 19, 1994, along with the second appeal, although the document specifically refers to the October 14, 1994 petition for review. The Motion to Correct was filed on October 31, 1994. All of the above documents were filed at the District Office rather than at the office of the Compensation Review Board.

The claimant has objected to the Motion to Correct and the Reasons of Appeal on the ground that they were filed late, and that they were improperly filed with the District Office rather than the CRB. He has moved to dismiss the October 14, 1994 appeal pursuant to Practice Book §§ 4055 on those grounds, and on the ground that Raposo’s brief was not filed by May 1, 1995, as required by the notice of the hearing date sent out by this Commission. He has also moved to dismiss the November 14, 1994 appeal on the ground that it is improper.

Section 31-301(a) provides that an appeal from a commissioner’s decision must be filed within ten days after the entry of the award in the district office from where the decision originated. The commissioner is then responsible for mailing the petition to the CRB. See also Admin. Reg. § 31-301-1. In conjunction with such an appeal, Admin. Reg. § 31-301-2 requires the appellant to file his reasons of appeal with the CRB no more than ten days after the appeal petition is filed. Admin. Reg. § 31-301-4 also requires that, if corrections to the factual findings are sought, the appellant file a Motion to Correct with the trial commissioner within two weeks after the finding has been filed. Admin. Reg. § 31-301-7 contemplates that the denial of a Motion to Correct can be made a ground of appeal, presumably by amending the reasons for appeal to include said denial. This board has never required a separate appeal from the denial of the Motion to Correct.

Based on the October 14, 1994 filing date of his appeal, Raposo should have filed Reasons of Appeal by October 24, 1994 with the CRB. Although the content of the document filed by Raposo on October 19, 1994 was sufficient to meet this requirement because it refers to Raposo’s initial appeal rather than his subsequent petition for review, it was improperly filed with the district office instead of the CRB. The latter office did not receive Raposo’s Reasons of Appeal until November 3, 1994. Contrarily, the Motion to Correct was properly filed with the District Office, but was not received until October 31, 1994. According to § 31-301-4, it should have been filed by October 21, 1994. Raposo did not seek an extension of time to file his motion. Although these defects may seem minor, they nonetheless conflict with the relevant regulations, and could have led to the failure of and/or the dismissal of the appeal. See Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 696 (1987); Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995); Smith v. New Haven, 10 Conn. Workers’ Comp. Rev. Op. 93, 1154 CRD-3-90-12 (April 20, 1992).

Similarly, Raposo’s failure to file a timely brief leaves it open to the exclusion of said brief or the dismissal of its appeal pursuant to P.B. § 4055. Green v. Labor Force of America, Inc., 13 Conn. Workers’ Comp. Rev. Op. 146, 1908 CRB-3-93-11 (Feb. 1, 1995). Unlike the late filings of the Reasons of Appeal and the Motion to Correct, which were not shown to have prejudiced the claimant in any way, Raposo’s tardy brief forced the claimant to file an appellee’s brief without having first been apprised of the appellant’s arguments. The excuse given by the respondent’s counsel is that he did not read the page of the CRB calendar that enumerated the briefing deadlines when it was mailed to him. Because the claimant was able to file a supplemental brief in reply to Raposo’s late brief, we will not hold this delay against Raposo. However, we strongly advise all counsel to read the notification provided by this board carefully, as we will not be so lenient in the future.

Turning to the merits of the case, Raposo essentially argues on appeal that the trial commissioner’s findings were not supported by the evidence, and that it was erroneous for her to conclude that the claimant suffered a compensable injury that caused his subsequent disability. This board does not retry the facts of a case on appeal, of course; the authority to find facts and determine the weight and credibility of the evidence presented is solely that of the trial commissioner. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995). On review, the commissioner’s conclusions must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally drawn from them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra. Similarly, only findings lacking any supporting evidence may be altered. Id.

Here, the trial commissioner declined to grant Raposo’s Motion to Correct. Instead, she left intact her findings that the claimant was an employee of Raposo on the date of injury; that he suffered a back injury arising out of and in the course of his employment, creating a lumbar disc problem; that he aggravated this injury after he returned to work for Raposo; that the herniated L3-L4 disc had to be surgically removed on January 19, 1993 as a result of the compensable injury; and that the claimant was totally disabled from January 19, 1993 to August 13, 1993. We do not think that these findings and conclusions were illegally based on mere speculation. The commissioner was entitled to rely on the testimony of the claimant and a co-worker, Hector Olguin, regarding the circumstances of the injury. She was not required to give equal weight to the opposing testimony from Daniel Raposo, who was not an eyewitness to the actual injury, but arrived on the scene afterward.

As for the herniated disk, Dr. Weiner, who treated the claimant at the time of both injuries, testified that an MRI taken on November 21, 1991 revealed that the claimant had a mild bulged disk L3-L4 and L4-L5 with mild pressure on the nerves. (Sept. 23, 1993 Transcript, p. 23-24). His testimony did not rule out the possibility that the claimant could require surgery later on. Dr. Prokop, who treated the claimant in 1993, reported that the claimant did require surgery for a lumbar disc problem that worsened in the months following his injury, and for which he was totally disabled until August 13, 1993. The fact that he first saw the claimant on January 11, 1993 (see Claimant’s Exhibit 5) did not make his opinion legally unreliable or speculative. The trial commissioner was entitled to evaluate the credibility of Dr. Prokop’s report, and did not err in relying on it in her Finding and Award. We need not disturb those findings here.

The trial commissioner’s decision is affirmed.

Commissioners Amado J. Vargas and Michael S. Miles concur.

1 An appeal by Raposo from the October 11, 1994 Finding and Award of Dismissal in Regard to Claim of Principal Employer was withdrawn. Raposo also filed a separate petition for review from the trial commissioner’s November 8, 1994 denial of his Motion to Correct. The Second Injury Fund had filed petitions for review from the October 7 and October 11, 1994 decisions, but withdrew both of them because no order had yet been entered against it. BACK TO TEXT

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