Currin v. State of Connecticut/DMR Region 2

CASE NO. 2183 CRB 6-94-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 27, 1996

SYBIL CURRIN

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DMR REGION 2

EMPLOYER

and

ALEXSIS, INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Rudolph A. Cohen, Esq., 116 Cottage Grove Rd., Suite 203, Bloomfield, CT 06002, who did not appear at oral argument.

Courtesy copy of this decision sent to Sybil Currin.

The employer was represented by Ernie Walker, Esq., Assistant Attorney General, 55 Elm St., Hartford, CT 06141-0120.

This Petition for Review from the September 9, 1994 Finding and Award of the Commissioner acting for the Sixth District was heard May 24, 1996 before a Compensation Review Board panel consisting of the Commissioners Robin L. Wilson, Nancy A. Brouillet and Michael S. Miles.

DISMISSAL

ROBIN L. WILSON, COMMISSIONER. The claimant has filed a petition for review from the September 9, 1994 Finding and Award by the trial commissioner acting for the Sixth District. In that decision, the trial commissioner found that the claimant, who had sustained a compensable injury to her leg on September 14, 1988, was not temporarily totally disabled pursuant to § 31-307. The trial commissioner further found that the claimant sustained a ten percent permanent partial disability to her leg. The claimant has failed to file a motion to correct or a legal brief. In addition, the claimant did not appear at oral argument before this board.

As the claimant has neglected to actively pursue her appeal, we dismiss the appeal for failure to prosecute with proper diligence pursuant to Practice Book § 4055. See Divita v. Thames Valley Steel, 12 Conn. Workers’ Comp. Rev. Op. 50, 1541 CRB-2-92-10 (Jan. 26, 1994); Milardo v. Shuck Petroleum, 11 Conn. Workers’ Comp. Rev. Op. 279, 1559 CRB-8-92-11 (Nov. 22, 1993); Hargatai v. Copy Data, Inc., 11 Conn. Workers’ Comp. Rev. Op. 106, 107, 1475 CRB-4-92-7 (June 2, 1993).

In addition, we note that even if we were to consider the merits of the claimant’s appeal, we would affirm the trial commissioner’s decision. Specifically, the claimant contends in her reasons of appeal and letters to this board regarding her appeal, that she has been unable to return to work due to her injury. Section 31-307 C.G.S. provides benefits when a compensable injury results in a claimant’s “total incapacity to work.” Whether a claimant is totally disabled from working is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994).

We will not disturb the commissioner’s factual determination unless the conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, the trial commissioner’s 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)). In the instant case, the determination that the claimant was not temporarily totally disabled is amply supported by the record. (See Findings No. 13-21 and Finding “A”).

The claimant further contends that Dr. Painter issued a report which indicated that she sustained a fifty-five percent permanent partial disability to her leg. That report was not part of the record presented to the trial commissioner as it was issued after the trial commissioner’s decision of September 9, 1994. We note that formal hearings on the issue of the claimant’s alleged increased permanent partial disability were held before a different trial commissioner on August 7, 1995 and January 11, 1996. The present appeal pertains only to the September 9, 1994 decision. Accordingly, the issue of the claimant’s alleged increased permanent partial disability is not presently before this board.

The claimant’s appeal is dismissed.

Commissioners Nancy A. Brouillet and Michael S. Miles concur.