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Cooper v. Sisters of Mercy

CASE NO. 3218 CRB-6-95-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 10, 1996

WILLIAM COOPER

CLAIMANT-APPELLANT

v.

SISTERS OF MERCY

EMPLOYER

and

FIREMAN’S FUND INS. CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The pro se claimant was not present at oral argument.

The respondents were represented by Ralph Russo, Esq., 150 North Main St., Suite 210, Manchester, CT 06040.

This Petition for Review from the November 22, 1995 Finding and Dismissal of the Commissioner acting for the Sixth District was heard April 19, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The pro se claimant has filed a petition for review from the November 22, 1995 Finding and Dismissal of the Commissioner acting for the Sixth District. He contends that the commissioner erred by dismissing his claim. The respondents have also filed a Motion to Dismiss the appeal for failure to file a timely Motion to Correct and Reasons of Appeal. We will address both of these matters here.

The claimant filed his petition for review on November 30, 1995. Pursuant to Admin. Reg. § 31-301-2, he then had ten days to file Reasons of Appeal with this board. Admin. Reg. § 31-301-4 also gave him two weeks to file a Motion to Correct the findings with the trial commissioner. When neither of these documents was filed, the respondents moved to dismiss the appeal on January 9, 1996. The claimant subsequently filed Reasons for Appeal on January 26, 1996, and a Motion to Correct on February 2, 1996, which was denied in its entirety by the trial commissioner.

Admin. Reg. § 31-301-4 gives the trial commissioner the power to extend for cause the time in which to file a Motion to Correct. Although that motion was denied by the commissioner in this case, it was still ruled on; thus, we presume that the commissioner accepted the motion and waived its tardiness. This issue is not vital to the respondents’ Motion to Dismiss, however, as an appeal will not be dismissed solely for failure to file a Motion to Correct. Instead, the effect of not filing such a motion would be to limit the appellant to the factual findings found by the trial commissioner. Bell v. U.S. Home Care Certified of Connecticut, 13 Conn. Workers’ Comp. Rev. Op. 294, 295, 1792 CRB-1-93-8 (April 21, 1995).

The failure to file Reasons of Appeal, on the other hand, makes an appeal voidable under § 31-301-2. Kulhawik v. Ace Beauty Supply, 2116 CRB-2-94-8 (decided Feb. 1, 1996). Our Appellate Court ruled in Sager v. GAB Business Services, Inc., 5 Conn. Workers’ Comp. Rev. Op. 12, 430 CRD-3-85 (March 23, 1988) that an appellee may move to dismiss an appeal to the CRB on that ground in accordance with Practice Book § 4056. However, the motion to dismiss must be filed within ten days after the time when the appellant’s Reasons of Appeal were due. Otherwise, the motion to dismiss is late, and the defect is deemed waived. Id., 697. Here, the Reasons of Appeal were due by December 10, 1995. A motion to dismiss the appeal based on their tardiness should have been filed within the ten days after that. Said motion was not filed here until January 9, 1996. Because this motion was late, we must deny the respondents’ Motion to Dismiss the pro se claimant’s appeal.

Turning to the merits, the commissioner found that the claimant began working as a part-time security guard for the respondent employer in July 1994. He alleges that he began experiencing low back pain in August or September, and filed a Form 30C on January 30, 1995, with a claimed injury date of October 7, 1994. Dr. Seyler, an endocrinologist who had served as the claimant’s primary care physician, testified by deposition that he had been treating the claimant for a hormonal deficiency since 1993. He stated that the claimant had complained of sciatic nerve pain on January 18, 1994. The claimant also mentioned pain and numbness in his buttocks and legs on October 13, 1994, at which time the claimant indicated that he had recently begun lifting weights and using a Nordic Track exercise machine. Dr. Seyler opined that it was not advisable for the claimant to engage in such activities.

The claimant then requested that he be referred to a neurosurgeon, and was accordingly sent to Dr. Rossi, who found musculoskeletal back problems in the claimant. He recommended surgery for a herniated disc, and disabled the claimant from work during February 1995. Dr. Lantner, another neurosurgeon, also diagnosed a disc herniation, but did not recommend surgery. He released the claimant for light duty work on March 28, 1995, with a seven percent permanent partial disability of the lumbar spine.

The commissioner noted that the claimant had not provided his other doctors with the history that Dr. Seyler had regarding the sciatic pain and the claimant’s weightlifting and exercising. The claimant stopped treating with Dr. Seyler in March 1995, and confronted the doctor on June 2, 1995, demanding that he retract statements in his October 1994 medical notes that referred to the claimant’s exercising. Dr. Seyler refused to change his report. The commissioner also found that the claimant’s supervisor testified that the claimant had not indicated that his back injury was work-related as late as January 17, 1995. The claimant presented his supervisor with a physician’s light duty restrictions on that date, but did not inform him that said restrictions were related to a work injury. The commissioner concluded that the claimant had pre-existing congenital lumbar stenosis, and found that the claimant’s back condition was not causally related to his employment with the respondent. The claimant appealed the dismissal of his claim.

At a formal hearing on a workers’ compensation claim, both parties are allowed to present medical evidence and testimony. The commissioner then decides which evidence and testimony is the most believable. Fair v. People’s Savings Bank, 207 Conn. 535, 538-41 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-19 (1979). Once the commissioner finds specific facts, the Compensation Review Board, as an appellate body, is bound by those factual findings if there is evidence in the record to support them. We do not retry the facts or hear further evidence. Adzima, supra, 118. Similarly, the conclusions drawn by the commissioner from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally drawn from them. Ettienne-Modeste v. Bloomfield, 13 Conn. Workers’ Comp. Rev. Op. 327, 328-29, 1789 CRB-1-93-9 (April 26, 1995).

The claimant’s appellate arguments do not allege that the commissioner committed error in interpreting the law, or in applying it to his case. Instead, they challenge the findings themselves, and are primarily based on two contentions: that his former employer’s representatives lied at the formal hearings, and that Dr. Seyler’s records were inaccurate, especially as they related to the effects of the claimant’s use of dumbbells and a Nordic Track exercise machine. Unfortunately for the claimant, there is nothing that this board can do on appeal to fully address those arguments. We have no power to reverse a commissioner’s decision to credit the testimony of one witness, or one doctor, over another; nor are we in any position to decide which witnesses were the most truthful. The commissioner is the one who decides which doctors, and which lay witnesses, to believe. Adzima, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The claimant has the job of proving that he has sustained a compensable injury. See Casanovas v. Acme United Corp., 2179 CRB-4-94-10 (decided May 9, 1996). If he cannot show the commissioner that sufficient facts exist to meet that burden of proof, there is little we can do to change that on appeal. The record contains evidence to support the existing findings, and we cannot say on appeal that the commissioner erred by crediting that evidence.

The trial commissioner’s decision is affirmed.

Commissioners Robin L. Wilson and Nancy A. Brouillet concur.

Workers’ Compensation Commission

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