State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Robare v. Robert Baker Companies

CASE NO. 4328 CRB-1-00-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 2, 2002

JEFFREY ROBARE

CLAIMANT-APPELLANT

v.

ROBERT BAKER COMPANIES

EMPLOYER

and

LIBERTY MUTUAL INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by John Quinn, Esq., Furniss & Quinn, P.C., 248 Hudson Street, Hartford, CT 06106.

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

This Petition for Review from the December 6, 2000 Denial of the Claimant’s Motion to Correct and Articulation by the Commissioner acting for the First District was heard June 22, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the December 6, 2000 Denial of the Claimant’s Motion to Correct and Articulation by the Commissioner acting for the First District. In that ruling, the trial commissioner denied the claimant’s Motion to Correct the November 6, 2000 Finding and Dismissal. In support of his appeal, the claimant argues that the trier erred in denying his Motion to Correct.

We will first consider the respondents’ Motion to Dismiss in which the respondents argue that the claimant failed to file an appeal within ten days of the issuance of the November 6, 2000 Finding and Dismissal. The respondents argue that the claimant has improperly attempted to circumvent the ten day appeal period by filing an appeal from the denial of the Motion to Correct. In the instant case, the claimant did not file an appeal within ten days of the November 6, 2000 decision, but did file a Motion to Correct on the 11th day- November 17, 2000. The claimant’s Motion to Correct was denied on December 6, 2000 and appealed by the claimant on December 12, 2000. The claimant argues that his appeal should not be dismissed because the Motion to Correct was filed within fourteen days of the Finding and Dismissal in accordance with § 31-301-4, and because he filed an appeal within ten days of the denial of said motion. We agree. However, we emphasize that our scope of review is necessarily limited, as explained below.

In support of their Motion to Dismiss, the respondents cite several board decisions which appear to hold that this board does not have jurisdiction over an appeal from the denial of a Motion to Correct where no Petition for Review or Motion to Correct has been filed within the ten days following the initial Finding. Specifically, the respondents cite Couto-Radcliff v. Glen Hill Convalescent, 3576 CRB-7-97-3 (April 2, 1998), Rushton v. VIP Limousine, 7 Conn. Workers’ Comp. Rev. Op. 117, 118, 756 CRD-7-88-8 (Dec. 6, 1989); and Imbrogno v. Stamford Hospital, 5 Conn. Workers’ Comp. Rev. Op. 99, 610 CRD-8-87 (June 9, 1988). In Couto-Radcliff, supra, the board held that the “filing of a motion to correct after the ten day appeal period does not serve to extend the appeal period.” Id. Additionally, in Rushton, the board explained: “In Imbrogno, we held that a Motion to Correct filed after the ten-day appeal period had elapsed did not toll the appeal period. The statute [does] not permit such, ‘back door’ attempts at access to appellate procedure.” Rushton, supra, at 118.

Similarly, in Czujak v. Bridgeport, 3535 CRB-4-97-2 (June 10, 1998), aff’d, 55 Conn. App. 789 (1999), cert. denied, 252 Conn. 920 (2000), the claimant filed a late appeal and subsequently filed an appeal from the denial of his Motion to Correct. The board dismissed the claimant’s petition for review as untimely, and explained: “The claimant’s subsequent filing of a Motion to Correct and petition for review from the denial of that motion did not act to cure the late appeal or extend the appeal period in any way.” Id., see also Garcia v. Tully, 4209 CRB-7-00-3 (March 1, 2001). We agree with the holding in these cases that a timely appeal from a Motion to Correct does not allow an appellant back door access to a review of the merits where no timely appeal from the initial decision has been filed. However, we do not read these cases to say that this concern over a “back door” route to the merits renders us with no subject matter jurisdiction over the appeal from the ruling on the Motion to Correct.

Thus, we will now take this opportunity to explain and delineate our jurisdiction over an appeal from the denial1 of a Motion to Correct where nothing was filed within ten days of the initial decision. We must, of course, first look to the relevant sections of the Workers’ Compensation Act. Section 31-301(a) provides in pertinent part as follows: “At any time within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board . . . .” Section 31-301(a) (emphasis added). It has repeatedly been held that this board lacks subject matter jurisdiction over late petitions for review. See Conaci v. Hartford Hospital, 36 Conn. App. 298, 303 (1994).2 Significantly, unlike the Appellate Court, an administrative agency such as the Workers’ Compensation Commission is a tribunal of limited jurisdiction whose authority is completely dependent on the statutes creating its power. Figueroa v. C&S Ball Bearing, 237 Conn. 1, 4 (1996), citing Castro v. Viera, 207 Conn. 420, 428 (1988). The Workers’ Compensation Act sets the boundaries of our subject matter jurisdiction, which cannot be conferred through consent or waiver. Id., 429-30.

Section 31-301(a) allows for an appeal to this board from “a decision of the commissioner upon a motion.” Thus, § 31-301(a) allows a party to appeal from the denial of a Motion to Correct.3 Section 31-301-4 allows a Motion to Correct to be filed within two weeks of the initial Finding, and also allows extensions of time to be granted by the trial commissioner. Accordingly, a party may properly file a Motion to Correct on the 11th day after the initial Finding, or indeed may file a Motion to Correct much later with the granting4 of an extension of time. Moreover, there is no requirement that a Motion to Correct accompany a Petition for Review. Accordingly, if we were to require a timely Petition for Review to be filed before we would consider an appeal from a ruling on a Motion to Correct, we would be adding a requirement which is not contained in the Act. Our Supreme Court has cautioned against “read[ing] words into a statute that are not there . . . .” Giaimo v. New Haven, 257 Conn. 481, 495 (2001). We thus decline to do so. Rather, as § 31-301(a) specifically allows for an appeal to be taken from a trier’s decision on a motion, we conclude that this board has jurisdiction to consider an appeal from a ruling on a Motion to Correct even where no timely appeal from the initial decision has been filed.

However, as we explained in Imbrogno, supra, Rushton, supra, and Czujak, supra, there exists a legitimate concern regarding this interpretation, as it arguably allows parties to have a “back door” route to contest a Finding in the absence of a timely Petition of Review from said Finding. Regarding this concern, it must be emphasized that an appeal from a denial of a Motion to Correct, in the absence of a timely appeal from the initial Finding, must be limited to a review of the Motion to Correct itself, and may not “bootstrap” an appeal from the initial Finding.5

To this effect, we remind the parties that in deciding a Motion to Correct, a trial commissioner has broad discretion. Specifically, the trial commissioner is the sole arbiter of the weight of the evidence, and it is the province of the trial commissioner, as the trier of fact, “to accept the evidence which impress[es] him as being most credible and more weighty.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 349 (1999) (citation omitted). “When the trier reviews a Motion to Correct, he must evaluate the proposed changes in that same capacity. He is not required to grant corrections that would not affect the outcome of the case, and this board may not retry the matter or independently appraise the evidence underlying the proposed corrections on review.” Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (Jan. 20, 2000). Thus, where a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.

We will now review the claimant’s appeal from the denial of his Motion to Correct. In the instant case, the trial commissioner made numerous findings of fact regarding the claimant’s contention that he sustained an injury to his left leg while kicking a tire at work on October 26, 1998. It was the claimant’s contention that during this incident, the claimant broke the rod in his left leg. It was undisputed that the claimant had previously been in a motorcycle accident in May of 1997 which caused him to sustain a severe injury to his left leg- an “extremely comminuted mid-shaft fracture of the left femur with displaced fracture of the left femoral neck. The condition in the left femur did not heal and in February of 1998, the medical records demonstrate that the claimant had a non-union at the fracture site above the knee.” Finding, ¶ B. Furthermore, the trial commissioner found that prior to his employment with the respondent employer, the claimant performed very heavy work as a welder with another employer which put “great stress on the fracture site . . . and the reconstruction hardware holding his leg together.” Finding, ¶ D.

The claimant argues in his Motion to Correct that the evidence indicates that the rod in the claimant’s left leg must have failed (broke) on October 26, 1998 during the alleged kicking incident at work. Specifically, in his Motion to Correct the claimant sought to make changes in the findings because, the claimant argues, the office notes of the treating physician, Dr. Deweese, were misconstrued regarding the condition of the claimant’s leg at an office visit on February 5, 1998. The claimant did not dispute that in February of 1998 an x-ray showed a “non-union in the junction between the normal bone and the highly comminuted fracture.” Finding, ¶ 15. However, the claimant contends that Dr. Deweese’s office notes of February 5, 1998 were misconstrued in that it “was not a ‘fait accomplis’ that the rod was to be replaced when the claimant treated with Dr. Deweese on February 5, 1998.” (Claimant’s Motion to Correct, p. 3).

We have repeatedly held that determining whether an injury arose out of and in the course of employment is a question of fact for the trial commissioner. Crochiere v. Board of Education, 227 Conn. 333, 346 (1993). In the instant case, the trial commissioner’s decision denying the claimant’s claim is largely based upon his assessment of the credibility of the evidence, including the credibility of the claimant and the claimant’s witnesses. The trier concluded that the claimant “provided several different versions as to what took place to cause the injury” and specifically found that the claimant’s testimony was not credible. Finding, ¶ F. The trier made numerous findings of fact from which may reasonably be inferred a lack of credibility in the claimant’s testimony. The trier also found that the witnesses presented by the claimant were not credible. Thus, the trier concluded that even if the hardware in the claimant’s left leg failed while he was at work on October 26, 1998 as alleged by the claimant, the claimant nevertheless failed to sustain his burden of proof that such failure arose out of his employment. Regarding this conclusion, the trier cited the claimant’s inconsistent statements, along with medical records indicating that the rod failure was due to fatigue.

Under these circumstances, even if the trial commissioner misconstrued the medical notes of the treating physician as alleged by the claimant, it would not affect the outcome of this case as the trial commissioner specifically found that the claimant’s account of the alleged injury was not credible. See Daubert v. Borough of Naugatuck, 4189 CRB-5-00-2 (Feb. 22, 2001). We thus find no error in the denial of the Motion to Correct.

The denial of the Motion to Correct is affirmed.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 In Buccieri v. Pacific Plumbing Supply Co., 3286 CRB-7-96-3 (Dec. 30, 1997), aff’d, 53 Conn. App. 671 (1999), we explained that where a ruling granting a Motion to Correct changes the outcome of the decision, this board has jurisdiction to consider an appeal from that ruling as an appeal from the original decision as amended by the granting of the Motion to Correct. In Buccieri, the claimant was not aggrieved until the granting of the Motion to Correct, and the claimant filed a timely appeal from that ruling. The board held that pursuant to § 31-301(a), it had jurisdiction to consider the claimant’s appeal from the Finding and Award as amended by the granting of the Motion to Correct. BACK TO TEXT

2 Generally, the ten-day period begins running on the date that notice of the decision is sent to the parties. Kulig v. Crown Supermarket, 250 Conn. 603, 610 (1999). The only recognized exception to this time limit applies when an aggrieved party, through no fault of its own, has failed to receive notice of the commissioner’s decision within ten days of the date it was sent. Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999). In such cases, the party seeking to appeal is given ten days from the date it actually received notice to file its petition for review. Id., 591 n. 14. BACK TO TEXT

3 We note that “this board has never required parties to file a separate petition for review from the denial of a Motion to Correct where a timely appeal was filed from the underlying award.” Costa v. Torrington Company, 4097 CRB-5-99-8 (July 28, 2000). BACK TO TEXT

4 The “trier may choose to rule on a late Motion to Correct, implying that he has waived its tardiness.” Wooten v. UTC/Pratt & Whitney, 3674 CRB-6-97-9 (May 7, 1999). BACK TO TEXT

5 We note that we have held that a party may appeal from a denial of a Motion to Reopen where a timely appeal has not been filed from the original decision, but that under such circumstances this board is limited to considering whether the trial commissioner abused his discretion in denying the Motion to Reopen. Bergin v. State/Department of Correction, 4200 CRB-8-00-3 (Aug. 23, 2001). BACK TO TEXT

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Page last revised: December 17, 2004

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