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Kent v. Pratt & Whitney, Inc.

CASE NO. 3648 CRB-01-97-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 13, 1998

DAVID KENT

CLAIMANT-APPELLANT

v.

PRATT & WHITNEY, INC.

EMPLOYER

and

CIGNA INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared on his own behalf.

The respondents were represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the July 9, 1997 Finding and Award of the Commissioner acting for the First District was heard June 12, 1998 before a Compensation Review Board panel consisting of Commissioner George Waldron and Commissioners Donald H. Doyle, Jr.,1 and Amado J. Vargas.

OPINION

GEORGE WALDRON, COMMISSIONER. The claimant has filed a petition for review from the July 9, 1997 Finding and Award of the trial commissioner acting for the First District. In that decision, the trial commissioner denied the claimant’s request to reopen a prior Finding and Award which had been issued on February 2, 1994. Specifically, the trial commissioner found that the claimant did not meet any of the criteria for reopening a decision pursuant to § 31-315 C.G.S., and further found that the claimant failed to file a timely appeal from the February 2, 1994 Finding and Award. In support of his appeal, the claimant makes numerous contentions, including (1) that he was unable to timely appeal the February 2, 1994 decision because his attorney failed to advise him of the decision and the need to appeal; (2) that the attorney who initially represented him acted in “collusion” with the claimant’s treating physician in order to “destroy” his case (Claimant’s Brief at p. 4); and (3) that the trial commissioner did not provide him with a fair hearing regarding his Motion to Reopen.

The trial commissioner found the following relevant facts. On February 2, 1994, a Finding and Award was issued by Commissioner Spain which dismissed the claimant’s claim for benefits. The claimant testified that no appeal was taken from that decision. The claimant contended that a timely appeal was not filed due to claimed negligence on the part of his counsel at that time. (Finding No. 3). The claimant alleged misconduct on the part of his treating physician regarding his testimony and reports, and that said medical evidence was relied upon by Commissioner Spain. The trial commissioner concluded that the claimant had not demonstrated sufficient cause for reopening the February 2, 1994 decision pursuant to the criteria of § 31-315 C.G.S., and thus denied the claimant’s Motion to Reopen.

In the instant case, the appropriate avenue for challenging the February 2, 1994 dismissal was to appeal that decision to the Compensation Review Board pursuant to § 31-301 C.G.S. “Where, as here, an appeal from a final judgment has not been seasonably taken, ‘[c]laimed errors which might have been assigned on such an appeal are no longer open to review’ upon an appeal from a denial of a motion to open that judgment.” Crozier v. Zaboori, 14 Conn. App. 457, 462 (1988), citing Zingus v. Redevelopment Agency, 161 Conn. 276, 282 (1971). In the instant case, the claimant failed to file a petition for review from the February 2, 1994 decision within the time limit prescribed by § 31-301(a) C.G.S., which states that “[a]t any time within ten days after entry of an award by the commissioner . . . either party may appeal therefrom to the compensation review board by filing in the office of the commissioner . . . an appeal petition . . . .” (Emphasis added).

It has repeatedly been held that the appealing party must file its appeal within the prescribed time period in order for this Board to have subject matter jurisdiction over the appeal. Kudlacz v. Lindberg Heat Treating Company, 49 Conn. App. 1 (1998); Conaci v. Hartford Hospital, 36 Conn. App. 298, 303-304 (1994); Cioffi v. Trumbull Marriot, 15 Conn. Workers’ Comp. Rev. Op. 297, 2209 CRB-4-94-11 (June 20, 1996). Timeliness depends upon the date that meaningful notice was sent to the parties rather than when meaningful notice was received. Kudlacz, supra; Conaci, supra. Here, the claimant contends that he was on vacation with his wife when the decision was issued, and that his attorney did not advise him in a timely manner of the trial commissioner’s decision or of the need to appeal within ten days. However, the claimant does not contend that his attorney failed to receive the February 2, 1994 decision in a timely manner. Although we are sympathetic to the claimant’s alleged circumstances regarding his failure to file a timely appeal, these alleged circumstances do not excuse the claimant’s failure to file a timely appeal from the February 2, 1994 decision as required by § 31-301(a). See Collier v. Kingswood Oxford School, 14 Conn. Workers’ Comp. Rev. Op. 184, 2213 CRB-6-94-11 (June 29, 1995).

Next, we will consider the claimant’s contention that the trial commissioner erred in denying his Motion to Reopen. Section 31-315 C.G.S. provides the following:

Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.

A trial commissioner’s power to open and modify an award, similar to the power of the judiciary to open and modify a judgment of court, is generally limited to claims of fraud, accident or mutual mistake. Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 544 (1969). A “decision to open or not to open a judgment falls within the trial court’s discretion and will be overturned on appeal only if such discretion was abused or if an unreasonable result was reached.” Housing Authority v. Lamothe, 225 Conn. 757, 767 (1993). “The commissioner must deny the motion [to open] unless further hearing would produce evidence of such character and force that it would be likely to cause a different result.” Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541-42 (1992) (quotations omitted).

In the instant case, the trial commissioner concluded that the claimant did not provide sufficient cause for reopening the February 2, 1994 decision. The claimant’s argument on appeal is essentially that the commissioner’s February 2, 1994 decision was not supported by reliable evidence. Specifically, the claimant alleges2 “fraud, conspiracy to commit fraud, and perjury... and legal malpractice....” (Claimant’s Brief at p. 2).

At the initial formal hearing, Commissioner Spain heard all of the evidence presented, and concluded that the claimant’s herniated disc was caused by a lifting incident at home rather than by previous lifting incidents at the workplace. The trial commissioner found that the claimant’s treating physician, Dr. Collins, opined that the ruptured disc was “the culmination of a process begun in the work place accidents of 1991, and 1992, and was compensable.” (2/2/94 Finding No. 10). On the other hand, Dr. Shafer, who conducted an independent medical examination of the claimant, opined that the “incident at home was the precipitating factor causing the herniation....” (2/2/94 Finding No. 11). It was within the discretion of the trial commissioner as the trier of fact to accord greater weight to the opinion of Dr. Shafer over that of the claimant’s treating physician. Sherman v. Construction & General Laborers Union Local 390, 3056 CRB-5-95-5 (decided Jan. 8, 1997), (citing Hawley v. Shell Oil Co., 13 Conn. Workers’ Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995)).

The claimant contends on appeal that the February 2, 1994 decision should have been reopened because the attorney who represented him at the formal hearing before Commissioner Spain acted in “collusion” with his treating physician in order to “destroy” his case (Claimant’s Brief at p. 4). In fact, the trial commissioner found that the claimant’s treating physician opined that his injury was compensable. Moreover, the claimant’s allegation, even if true, would not be “likely to cause a different result” because Commissioner Spain’s decision was fully supported by the medical opinion of Dr. Shafer. See Tutsky, supra.

Finally, we note that the claimant makes unsubstantiated allegations of bias against the trial commissioner and other employees of the Workers’ Compensation Commission. We find no merit to the claimant’s argument that the trial commissioner improperly advised the claimant that the formal hearing was limited to the issue of the claimant’s Motion to Reopen, and that he could not at that point retry the claimant’s claim. We have reviewed the transcript of the formal hearing, and conclude that the trial commissioner provided the claimant with a full and fair opportunity to present his case.

The trial commissioner’s decision is affirmed.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.

1 Commissioner Doyle was not present during the oral argument on June 12, 1998. An official transcript of the June 12, 1998 oral argument was provided to Commissioner Doyle, along with the record of the appeal before the Compensation Review Board. BACK TO TEXT

2 We note that the claimant did not introduce any evidence to substantiate these allegations. BACK TO TEXT

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