Salz v. Oliver’s Taverne

The claimant was no longer represented by counsel at the time of oral argument. She filed her brief on appeal pro se but did not appear before the Compensation Review Board for oral argument.

The respondents were represented by Margaret E. Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the November 30, 1992 Finding and Award of the Commissioner for the Eighth District was heard March 11, 1994 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Angela L. dos Santos and Nancy A. Brouillet.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The claimant appeals from the Eighth District Commissioner’s November 30, 1992 Finding and Award. In her appeal, the claimant contends that the trial commissioner improperly (1) failed to grant additional permanent partial incapacity benefits pursuant to General Statutes Sec. 31-308(b), and (2) failed to grant sufficient compensation pursuant to General Statutes Sec. 31-308a. We affirm the trial commissioner.1

The issue of the extent of the claimant’s permanent partial incapacity was the subject of divergent medical opinion. Where, as here, the medical evidence regarding extent of the claimant’s permanency was in conflict, the trial commissioner’s conclusion must stand so long as there is evidence to support it. See Dusto v. Rogers Corporation, 1496 CRB-1-92-8 (decided February 4, 1994); Pulcinella v. Prudential Insurance Company, 10 Conn. Workers’ Comp. Rev. Op. 251, 1236 CRD-6-91-5 (1993). Regarding the evidence supporting the claimed increase in permanent partial impairment, the trial commissioner found that “the conclusions reached in [the report of the claimant’s treating chiropractor] are highly questionable in light of the paucity of medical evidence to support them.” The trial commissioner clearly gave greater weight to other medical opinion evidence, specifically finding in accordance with the evidence before him that “[t]he reports of the medical doctors seem to more accurately reflect the degree of permanency which is essentially the amount assessed in the Voluntary Agreements.”

“The trier of the facts determines with finality the credibility of the witnesses and the weight to be accorded their testimony.” (Internal quotation marks omitted.) Miller v. Kirshner, 225 Conn. 185, 198 (1993); State v. Robinson, 213 Conn. 243, 256 (1989). As the commissioner’s conclusion that the claimant had failed to prove any increase in permanency did not result from incorrect applications of law or from inferences illegally or unreasonably drawn from the facts, that conclusion must stand. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

We turn now to the claimant’s challenge to the commissioner’s limited award of Sec. 31-308a benefits. “An award for Sec. 31-308a C.G.S. benefits is within a trial commissioner’s discretion.” Lageux v. Veilleux, 9 Conn. Workers’ Comp. Rev. Op. 177, 180, 876 CRD-6-89-6 (1991). The commissioner’s award of Sec. 31-308a benefits must stand unless it is shown to be an abuse of discretion. Hicks v. State of Connecticut, 6 Conn. Workers’ Comp. Rev. Op. 111, 115, 429 CRD-5-85 (1989), no error, 21 Conn. App. 464, cert. denied, 216 Conn. 804 (1990). As the commissioner’s finding regarding the claimant’s earning capacity and her resulting wage loss was adequately grounded in the evidence and the subsidiary factual findings on which it was based, it cannot be said that the commissioner abused his discretion with respect to the Sec. 31-308a award. Lageux v. Veilleux, supra; Zipoli v. Town of Watertown, 6 Conn. Workers’ Comp. Rev. Op. 158, 679 CRD-5-88-1 (1989).

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners Angelo. L. dos Santos and Nancy A. Brouillet concur.

1 During the course of this appeal, the claimant discharged her trial counsel, Frederick J. Miano of Old Saybrook. Thereafter, she failed to file any Reasons of Appeal and did not file her brief until four days before oral argument. The respondents have requested that we dismiss this appeal pursuant to Practice Book Sec. 4055 for the claimant’s failure to prosecute the appeal with due diligence. As the claimant is proceeding pro se, we will consider the matter on the merits despite her failure to observe our procedural rules. See Gurski v. Concessionair, Division of Delaware North, 9 Conn. Workers’ Comp. Rev. Op. 282, 1218 CRD-7-91-4 (1991); Madden v. Moore Special Tool, 9 Conn. Workers’ Comp. Rev. Op. 107, 834 CRD-4-89-3 (1991). BACK TO TEXT