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Bernier v. American Ref-Fuel Company of Southeast Connecticut

CASE NO. 4876 CRB-2-04-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 23, 2005

BRUCE BERNIER

CLAIMANT-APPELLANT

v.

AMERICAN REF-FUEL COMPANY OF SOUTHEAST CONNECTICUT

EMPLOYER

and

CRAWFORD and COMPANY

INSURER

and

ZURICH NORTH AMERICA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear at the hearing.

The respondent-employer and Crawford and Company were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

The respondent-employer and Zurich North America were represented by Michael A. Burton, Esq., D’Attello, Shields & La Bella, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067.

This Petition for Review from the October 6, 2004 Finding and Dismissal of the Commissioner acting for the Second District was heard September 23, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has filed a timely petition for review from the October 6, 2004 Finding and Dismissal of the Commissioner acting for the Second District. The claimant has failed to file a motion to correct, reasons of appeal, or a brief. He also did not attend a properly scheduled and noticed hearing on his appeal on September 23, 2005.

Accordingly, we dismiss the claimant’s appeal for failure to prosecute with proper diligence pursuant to Practice Book § 85-1. See Thomas v. Cash Oil, 15 Conn. Workers’ Comp. Rev. Op. 410, 2272 CRB-3-95-1 (August 28, 1996); Divita v. Thames Valley Steel, 12 Conn. Workers’ Comp. Rev. Op. 50, 1541 CRB-2-92-10 (January 26, 1994); Milardo v. Shuck Petroleum, 11 Conn. Workers’ Comp. Rev. Op. 279, 1559 CRB-8-92-11 (November 22, 1993).

Even if we were to consider the merits of the claimant’s appeal, we would necessarily affirm the trial commissioner’s decision. This is because, based upon the record before this board, the claimant is attempting to retry the facts of this case, which this board may not do. Specifically, the trial commissioner found that the claimant’s present injuries were not the result of his previous compensable work-related injuries which occurred on May 6, 1992 and April 25, 2002. Rather the trier found the present injuries to more likely be the result of claimant driving stakes into the ground for personal reasons on July 20, 2003, constituting a new injury. The trial commissioner considered the claimant’s testimony and that of his physician, as well as the testimony of respondents’ physician, Dr. Druckemiller. The trial commissioner found Dr. Druckemiller’s testimony to be more credible. In a workers’ compensation case, issues of credibility are the sole province of the trial commissioner. Kish v. Nursing Home and Care, Inc., 47 Conn. App. 620, 627 (1998). This board may not reverse decisions regarding the credibility of witnesses on review, and may not enter its own findings in place of those of the trial commissioner. Id.; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

The claimant’s appeal is dismissed.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

Workers’ Compensation Commission

Page last revised: January 5, 2006

Page URL: http://wcc.state.ct.us/crb/2005/4876crb.htm

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