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Zering v. UTC/Pratt & Whitney

CASE NO. 3321 CRB-6-96-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 8, 1997

FREDERICK ZERING

CLAIMANT-APPELLEE

v.

UTC/ PRATT & WHITNEY

EMPLOYER

and

CIGNA PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Lawrence S. Brick, Esq., Corporate Center West, 433 South Main St., Suite 102, West Hartford, CT 06110.

The employer and its insurer were represented by Margaret E. Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the April 3, 1996 Finding and Award of the Commissioner acting for the Sixth District was heard January 10, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer (hereinafter “respondents”) have petitioned for review from the April 3, 1996 Finding and Award of the Commissioner acting for the Sixth District. In that decision, the trial commissioner found that the claimant sustained a compensable injury to his right shoulder on March 31, 1992. The respondents argue on appeal that that the Finding and Award is void because it was not issued within 120 days. In addition, the respondents contend that the trial commissioner’s reliance on the claimant’s testimony was unreasonable because the claimant’s testimony was shown to be untrustworthy, and was contradicted by other witnesses. In addition, the respondents contend that the claimant’s medical treatment was not properly authorized.

We will first address the respondents’ contention that the trial commissioner’s decision is invalid because it was made more than 120 days after the submission of proposed findings on May 25, 1995. According to § 31-300 C.G.S., the trial commissioner was required to issue a decision within one hundred twenty days of the close of the hearing. Our Supreme Court has held that the time period in § 31-300 is mandatory, and that prejudice need not be demonstrated to invalidate a late decision. Stewart v Tunxis Service Center, 237 Conn. 71, 76-80 (1996). However, the parties may waive a trial commissioner 2’s noncompliance with § 31-300, either explicitly or implicitly by conduct. Id. at p. 80; Dichello v. Holgrath Corporation, 15 Conn. Workers’ Comp. Rev. Op. 441, 2249 CRB-5-94-12 (Sept. 5, 1996). In the Stewart case, on remand from our Supreme Court this board stated that “when the 120-day time limit has long passed, and a party has made no indication that it has an objection to the lateness of a decision, this board is inclined to interpret that inaction as an intent to waive the 120-day time limit. A party shall not be allowed to choose to enforce its right to invalidate a ruling only after the party reviews the decision and decides that it is adverse to its interests, barring special circumstances.” Stewart v. Tunxis Service Center, 16 Conn. Workers’ Comp. Rev. Op. 69, 71, 1684 CRB-6-93-4 (October 30, 1996).

In the instant case, the respondents did not object to the delay of the issuance of a decision by the trial commissioner until April 17, 1996, the date the respondents filed a Motion to Vacate. “We will not allow parties to acquire a type of veto power over a decision by failing to object to a late award until they have an opportunity to see whether they approve of the result.” Minneman v. Norwich Board of Education, 2294 CRB-2-95-2 (decided Dec. 13, 1996). We conclude that the respondents waived their right to enforce the 120-day time limit in § 31-300.

We now turn to the merits of the respondents’ appeal. The respondents contend that the trial commissioner erred in relying on the claimant’s testimony because said testimony was shown to be untrustworthy and was contradicted by other witnesses. The respondents specifically reference the claimant’s testimony regarding his physical capabilities, the video of the claimant playing golf, and a co-worker’s testimony that the claimant had told her that his injury occurred while he was lifting weights outside of work. The trial commissioner considered these issues. (Finding No. 9, 17-19, and 24-31).

As we have often stated, this board does not retry the facts because the power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). In the instant case, the trial commissioner’s determinations are based upon the weight and credibility which he accorded the evidence and we will thus not disturb them.

In further support of their appeal, the respondents contend that the trial commissioner erred by ordering the respondents to pay medical bills for treatment by Dr. Steckler because there was no referral from Dr. Rivera. We disagree. The trial commissioner found that on the day following the injury, the respondent employer directed the claimant to a walk-in health clinic where he was seen by Dr. Rivera. The trial commissioner did not find Dr. Rivera to be the claimant’s treating physician. Rather, the trial commissioner found that the claimant selected Dr. Steckler as his treating physician. (Finding No. 20). Thus, the respondents are liable for the medical bills from Dr. Steckler.1

Finally, we will address the respondents’ contention that the trial commissioner erred in denying their Motion to Correct. A Motion to Correct may be denied where the legal conclusion of the commissioner would not be altered by the substituted findings. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). We find no error in the commissioner’s denial of the respondents’ Motion to Correct.

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The respondents also contend that the trial commissioner erred by ordering the respondents to pay medical bills for treatment by Dr. Froeb. However, the trial commissioner did not make any findings regarding Dr. Froeb, and did not order the respondents to pay his bills. The record indicates that the claimant saw Dr. Froeb in order to obtain a second opinion regarding whether to have the surgery which was recommended by Dr. Steckler. (2/9/94 TR. at p. 14). As the trial commissioner did not find that the claimant was sent to Dr. Froeb by his treating physician, Dr. Steckler, it appears that Dr. Froeb was not authorized. See Mahoney v. Bill Mann Tree Service, 16 Conn. Workers’ Comp. Rev. Op. 17, 3025 CRB-4-95-3 (Oct. 4, 1996). BACK TO TEXT

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