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Tucholski v. Rex Forge

CASE NO. 3756 CRB-06-98-01

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 8, 1999

RONALD TUCHOLSKI

CLAIMANT-APPELLANT

v.

REX FORGE

EMPLOYER

and

CHUBB & SON, INC.

TRAVELERS PROPERTY & CASUALTY

CIGNA

EBI INSURANCE CO.

LIBERTY MUTUAL INSURANCE

HARTFORD ITT INSURANCE GROUP

INSURERS

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert Cohen, Esq., Levy & Droney, P.C., 74 Batterson Park Road, P.O. Box 887, Farmington, CT 06034-0887.

The employer and CIGNA were represented by Diane Duhamel, Esq., and David Schoolcraft, Esq., Duhamel & Schoolcraft, 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.

The employer and EBI were represented by Richard Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The employer and Hartford ITT were represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

The employer and Liberty Mutual were represented by Nancy S. Rosenbaum, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.

The employer and Chubb & Son were represented by John Figlar, Esq., Chubb & Son Inc., P.O. Box 1903, New Haven, CT 06509, who did not appear at oral argument.

The employer and Travelers were represented by John Zajac, Esq., formerly of Law Offices of Scott B. Clendaniel, One Civic Center Plaza, P.O. Box 2138, Hartford, CT 06145-2138.

This Petition for Review from the December 17, 1997 Finding and Award of the Commissioner acting for the Sixth District was heard June 12, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Amado J. Vargas.

DISMISSAL ORDER

JESSE M. FRANKL, CHAIRMAN. The claimant has filed an untimely petition for review from the December 17, 1997 Finding and Award of the trial commissioner acting for the Sixth District. In that decision the trial commissioner concluded that the claimant failed to sustain his burden of proof with regard to his claim that he suffered binaural hearing loss. In support of his appeal, the claimant contends that the trial commissioner erred in relying upon the American Medical Association’s guidelines for determining hearing loss.

The claimant’s petition for review was filed on January 2, 1998, over ten days after the trial commissioner’s Finding and Dismissal had been issued on December 17, 1997. The tenth day fell on Saturday, December 27, 1997, and thus in order to be timely the appeal had to be filed on or before Monday, December 29, 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). In the instant case, the claimant contends that the appeal was filed late due to extenuating circumstances, including a change of personnel at the law firm. 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. In his appeal, the claimant seeks to retry his case. 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 from binaural hearing loss. The trial commissioner chose to rely upon the opinion of Dr. Lehman, who conducted an independent medical examination of the claimant. Dr. Lehman opined that the claimant did not sustain a hearing loss. 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. Fair, supra. Moreover, 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)).

The claimant’s appeal is dismissed.

Commissioners George Waldron and Amado J. Vargas concur.

Workers’ Compensation Commission

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