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Brown v. Interstate Pallet Co.

CASE NO. 3064 CRB-3-95-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 25, 1996

ROBERT BROWN

CLAIMANT-APPELLANT

v.

INTERSTATE PALLET CO.

EMPLOYER

and

ITT HARTFORD

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by John D’Elia, Esq., Kennedy & Johnson, Long Wharf Maritime Center, 545 Long Wharf Drive, New Haven, CT 06511.

The respondents were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the February 6, 1995 Finding and Dismissal of the Commissioner acting for the Third District was heard March 15, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 6, 1995 Finding and Dismissal of the Commissioner acting for the Third District. He argues on appeal that the commissioner erroneously failed to find that the claimant’s injury arose out of and in the course of his employment. We affirm the trial commissioner’s decision.

Before we address the merits of this case, we note that the respondents have filed a motion to dismiss the claimant’s appeal on the ground that he failed to file timely reasons of appeal. Admin. Reg. § 31-301-2 requires that an appellant file reasons of appeal within ten days of the filing of the petition for review. Here, the petition for review was filed on February 14, 1995, along with a request for an extension of time to file reasons of appeal until fifteen days after the ruling on his Motion to Correct was received. This request was not explicitly ruled on. The Motion to Correct was subsequently denied on July 5, 1995. The claimant filed Reasons of Appeal on August 1, 1995. The respondents filed their Motion to Dismiss on July 27, 1995.

Under Practice Book § 4056, a motion to dismiss an appeal for failure to file timely reasons of appeal must be filed within ten days after the occurrence of the ground for dismissal. Assuming that the motion for extension of time should be deemed granted, the claimant’s Reasons of Appeal would have been due fifteen days after receiving notice of the denial of the Motion to Correct. Although that ruling was dated July 5, 1995, the claimant argues that he did not receive said ruling until July 13, 1995. Either way, of course, August 1 would be more than fifteen days after that date. It would also appear either way that the respondents’ Motion to Dismiss was timely filed under § 4056.

Nevertheless, the failure to file timely Reasons of Appeal makes an appeal voidable, not void. Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 697 (1987); see also Kelley v. Bonney, 221 Conn. 549, 559 (1992) (appellate courts continue to have discretion to hear appeal even if party timely moves to dismiss a late appeal). Under the circumstances of this case, where the Reasons for Appeal were arguably only three days late and the respondents were not prejudiced by their lateness, we opt to deny the respondents’ motion to dismiss. We thus reach the merits of the appeal.

The claimant alleged that he sustained a low back injury on December 7, 1993 when he pulled a pin on a trailer to disconnect the attached cab, slipped and fell to the ground. The respondent employer denied the occurrence of the injury, questioning the claimant’s failure to report it the night it occurred and insinuating that he was instead hurt at home later that evening. The commissioner found that the claimant had a very specific recollection of the events on December 7, 1993, and that he went to a walk-in medical clinic two days later and was released for work on December 13, 1993. Subsequently, the claimant sought further medical treatment, and was disabled from work.

A representative of the employer testified that the claimant did not work on December 8, 9, or 10, but stopped by on December 9 to seek permission to visit the employer’s HMO because he had no insurance and his back was acting up. (See Claimant’s Exhibit B). Apparently, the claimant had previously complained of low back pain. According to the employer’s vice-president, the employer was not notified of the claimant’s alleged December 7, 1993 work injury until January 31, 1994. The respondent also cited the claimant’s own time records as indicating that he was not on the premises at the time of the alleged injury. The commissioner found that the claimant’s recollection of the events of December 7, 1993 were inconsistent with the company records, medical histories, climatological data, and testimony of other witnesses, and ruled that he had not established his claim by a preponderance of the evidence. The claimant then appealed the dismissal of his claim.

Whether or not a claimant has suffered an injury at the workplace is the epitome of a factual question, which is by law relegated to the fact-finding duties of the trial commissioner. See Casanovas v. Acme United Corp., 2179 CRB-4-94-10 (decided May 9, 1996); Maio v. L.G. Defelice, Inc., 13 Conn. Workers’ Comp. Rev. Op. 197, 198-99, 1734 CRB-5-93-5 (March 22, 1995). The claimant bears the burden of introducing evidence to establish his claim, of course. It is the commissioner’s responsibility to decide which witnesses and evidence are credible, and we will not disturb his findings unless they are unsupported by the evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

The corrections sought by the claimant in his Motion to Correct are almost completely dependent on the assumption that the claimant’s testimony was credible and had to be believed by the commissioner. As we have just stated, however, it was well within his fact-finding authority to disregard the claimant’s testimony and to deny those corrections. Maio, supra, 199. There is also evidence in the record that supports the dismissal of the claim. We would be proceeding outside the bounds of our authority on review to disturb the commissioner’s conclusion that the claimant did not meet his burden of proof. Therefore, we will not do so.

The trial commissioner’s decision is affirmed.

Commissioners Robin L. Wilson and Michael S. Miles concur.

Workers’ Compensation Commission

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