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Fenn v. H.L. Bennett Jr., Inc.

CASE NO. 3712 CRB-05-97-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION\

NOVEMBER 16, 1998

DUANE FENN

CLAIMANT-APPELLANT

v.

H.L. BENNETT JR., INC.

EMPLOYER

and

CNA INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared on his own behalf.

The respondents were represented by Howard Levine, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main Street, Suite 310N, West Hartford, CT 06107.

This Petition for Review from the October 10, 1997 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 8, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.

DISMISSAL ORDER

JESSE M. FRANKL, CHAIRMAN. The claimant has filed an untimely petition for review from the October 10, 1997 Finding and Dismissal of the trial commissioner acting for the Fifth District. In support of his appeal, the claimant contends that the trial commissioner failed to consider the claimant’s testimony and other evidence, and thus the trial commissioner’s decision should be vacated.

The claimant’s petition for review was filed on October 28, 1997, over ten days after the trial commissioner’s Finding and Dismissal had been issued on October 10, 1997. The claimant’s petition for review was not filed 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. In the instant case, the claimant contends that he received the trial commissioner’s decision on October 14, 1997. We conclude that the claimant’s petition for review was not filed within the time limits required by § 31-301(a) and we thus must dismiss it as untimely.

Even if we were to consider the merits of the claimant’s appeal, we would nevertheless affirm the trial commissioner’s decision because the decision is based upon findings of fact which are fully supported by the record. The claimant’s argument on appeal is essentially that the commissioner’s conclusion is not supported by the evidence. 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).

In the instant case, the trial commissioner concluded that the claimant failed to sustain his burden of proof that he suffered a compensable injury on either September 13, 1995 or January 12, 1996. The trial commissioner specifically found that the claimant failed to report these alleged injuries to his employer, and did not seek medical attention for said injuries. Moreover, the trial commissioner found that the claimant failed to produce any contemporaneous documentation to support these alleged injuries, and further failed to produce any witnesses.

Where, as here, the commissioner’s determination is based upon the weight and credibility that he has accorded the evidence, we will not disturb such a determination. Dickey v. Harris Graphics, 12 Conn. Workers’ Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994). Moreover, a trial commissioner has the “right to reject testimony even if seemingly uncontradicted.” Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 235, 1000 CRD-5-90-4 (Oct. 30, 1991); see also Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996).

We note that the claimant makes unsubstantiated allegations of bias against the trial commissioner. The claimant’s allegations amount merely to the contention that the trial commissioner did not choose to believe the claimant’s presentation of evidence, which the trial commissioner as the trier of fact may do. See Cummings, supra; Fair, supra.

Finally, we will address the claimant’s request to submit additional evidence. The admission of additional evidence to the Compensation Review Board is controlled by Administrative Regulation § 31-301-9.1 In the instant case, in the claimant’s reasons for appeal dated November 11, 1997, the claimant seeks to present unspecified evidence to support his claim. Furthermore, the claimant contended at oral argument that he seeks to introduce unspecified documentation regarding his unemployment compensation hearings. The claimant offers no indication that the evidence he seeks to submit was undiscoverable with due diligence at the time of the original hearings.2Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 205, 208-09, 1289 CRD-6-91-9 (Dec. 2, 1992); see also Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 66, 550 CRD-7-87 (Dec. 1, 1988). Moreover, a motion to submit additional evidence may not properly be used to alter a party’s evidentiary decisions regarding the presentation of evidence at a formal hearing. Lange v. J & B Excavating & Paving, 11 Conn. Workers’ Comp. Rev. Op. 42, 1249 CRD-3-91-6 (March 18, 1993); see also Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 205, 208-09, 1289 CRD-6-91-9 (Dec. 2, 1992). It is the claimant’s burden to recognize and resolve any inconsistencies in the evidence at the formal hearing, whether or not those discrepancies seemed significant to the claimant at the time of the hearing. Lesczynski, supra.

We thus conclude that the claimant has failed to satisfy the requirements of Conn. Agencies Reg. § 31-301-9. Furthermore, we note that during oral argument the claimant contended that the trial commissioner improperly denied the claimant’s request to submit a written statement from his wife. During the formal hearing, the trial commissioner explained to the claimant that a written note from his wife constituted hearsay, but that the claimant could have his wife testify. (5/1/97 TR. at p. 18). Although the claimant stated that his wife was present, he decided not to have her testify. Id. In the instant case, the claimant was provided a full and fair opportunity to present his evidence. We find no error on the part of the trial commissioner.

The claimant’s appeal is dismissed.

Commissioners Michael S. Miles and Stephen B. Delaney concur.

1 “If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner....” BACK TO TEXT

2 The claimant testified at the formal hearing that he applied for and was granted unemployment compensation from January of 1996 through June of 1996, and again from August of 1996 through September of 1996. (Finding No. 14). BACK TO TEXT

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