Mitchell v. Timex Corporation

The respondents were represented by Joanne T. Belisle, Esq., Monstream & May, 655 Winding Brook Dr., Glastonbury, CT 06033.

This Petition for Review from the September 22, 1994 Finding and Dismissal of the Commissioner acting for the Fifth District was heard June 9, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has filed a timely petition for review from the Fifth District Commissioner’s September 22, 1994 Finding and Dismissal. The trial commissioner found that the claimant experienced a limited injury to her back in March of 1987 as a result of a crawling incident. However, the commissioner concluded that the claimant failed to meet her burden of proof that the incident at work caused her current back symptoms, any permanent partial impairment, or periods of alleged total disability. In support of her appeal, the claimant contended at oral argument that the medical reports in the record support her contention that her back condition was caused by the incident at work.

We will first address the respondents’ motion to dismiss the claimant’s appeal. The claimant has failed to file a motion to correct or a brief. We note that on June 8, 1995 the claimant filed sections of the transcript and copies of various exhibits which had previously been entered into evidence at the formal hearing. However, even if we considered that submission to constitute a legal brief, we would nevertheless find it to be untimely filed because it was filed on the day prior to oral argument.1 As the claimant has failed to file a motion to correct or a timely brief, we will dismiss the appeal for failure to prosecute with proper diligence pursuant to Practice Book § 4055. See Milardo v. Shuck Petroleum, 11 Conn. Workers’ Comp. Rev. Op. 279, 1559 CRB-8-92-11 (Nov. 22, 1993) (appeal dismissed for failure to file timely brief); Divita v. Thames Valley Steel, 12 Conn. Workers’ Comp. Rev. Op. 50, 1541 CRB-2-92-10 (Jan. 26, 1994); Hargatai v. Copy Data, Inc., 11 Conn. Workers’ Comp. Rev. Op. 106, 107, 1475 CRB-4-92-7 (June 2, 1993).

Even if we were to consider the merits of the appeal, we would be compelled to affirm the trial commissioner’s decision. Specifically, in the absence of a motion to correct, we have ruled that “the facts as found by the trial commissioner must stand.” Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 235-36, 1000 CRD-5-90-4 (Oct. 30, 1994). Moreover, the issue of the medical causation of a disability is a factual determination which must be made by the trial commissioner. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). 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). Where, as here, the commissioner’s determination is based upon the weight and credibility which 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).

The claimant’s appeal is dismissed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 The Compensation Review Board Calendar for June 9, 1995 stated that briefs of appellants must be filed by April 21, 1995. BACK TO TEXT