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Bratchell v. United Parcel Service, Inc.

CASE NO. 3637 CRB-07-97-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 10, 1998

PATRICK BRATCHELL

CLAIMANT-APPELLANT

v.

UNITED PARCEL SERVICE, INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Howard A. Lawrence, Esq., Law Offices of Howard Lawrence, 1 Trumbull Street, New Haven, CT 06511, who waived oral argument and proceeded on papers.

The respondents were represented by Kevin Maher, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430.

This Petition for Review from the June 25, 1997 Finding and Dismissal of the Commissioner acting for the Seventh District was heard February 20, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 25, 1997 Finding and Dismissal of the Commissioner acting for the Seventh District. In that decision, the trial commissioner found that the claimant’s psychiatric condition was not caused by his compensable injury. In support of his appeal, the claimant contends that the trial commissioner erred in relying on the opinion of the independent medical examiner rather than the opinion of the treating psychiatrist. In addition, the claimant contends on appeal that this matter should be remanded because the Finding and Dismissal was not issued within 120 days.

We will first address the claimant’s contention that the trial commissioner’s decision is invalid because it was made more than 120 days after the record below was closed on December 18, 1996. 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’s noncompliance with § 31-300, either explicitly or implicitly by conduct. Id. at p. 80; Dichello v. Holgrath Corporation, 49 Conn. App. 339 (1998). In the Stewart case, upon 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 (Oct. 30, 1996).

In the instant case, the claimant did not object to the delay of the issuance of a decision by the trial commissioner until July 11, 1997, when he filed his reasons of appeal which include this issue. “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 (Dec. 13, 1996), aff’d., 47 Conn. App. 913 (1997) (per curiam), cert. denied, 243 Conn. 962 (1998). Thus, we hold that the claimant waived its right to enforce the 120-day time limit in § 31-300.

We now turn to the merits of the claimant’s appeal. The claimant contends that the medical opinion of the treating psychiatrist, Dr. Biassey, supports the conclusion that the claimant’s psychiatric condition was caused by his compensable injury of August 30, 1991. Furthermore, the claimant contends that the trial commissioner erred in relying upon the opinion of Dr. Rubinstein, who conducted an independent medical evaluation pursuant to § 31-294f.

Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). 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). We have specifically held that it is within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of the physician who conducted an independent medical examination than to the opinion of the claimant’s treater. Sherman v. Construction & General Laborers Union Local 390, 3056 CRB-5-95-5 (Jan. 8, 1997), (citing Hawley v. Shell Oil Co., 13 Conn. Workers’ Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995)).

In the instant case, the medical opinion of Dr. Rubinstein fully supports the trial commissioner’s conclusion that the claimant’s psychiatric condition was not caused by his compensable injury. (See Finding No. 13 and 14; see also 11/15/96 Depo. at p. 30-32). Accordingly, we may not disturb the trial commissioner’s decision. See Fair, supra; see also Sherman, supra.

The trial commissioner’s decision is affirmed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

Workers’ Compensation Commission

Page last revised: June 29, 2005

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