Whelan v. Humphrey Chemical Co., Inc.

The respondents were represented by Richard S. Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

These Petitions for Review from the November 4, 1997 Finding and Award of the Commissioner acting for the Third District were considered May 29, 1998 by a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. Both the pro se claimant and the respondents have filed petitions for review from the November 4, 1997 Finding and Award of the Commissioner acting for the Third District. The respondents argue that the commissioner erred by finding the claimant’s injury compensable. The claimant, meanwhile, has failed to file Reasons of Appeal, an appellate brief, or a Motion to Correct. In addition, the claimant did not appear at oral argument before this board.

Where a claimant is proceeding pro se on appeal, this board normally relaxes the rules of procedure in recognition of his presumed unfamiliarity with the law. Hines v. Linc Scientific Imaging, 3037 CRB-8-95-3 (April 14, 1997). However, we still retain the authority to dismiss the appeal when the pro se appellant fails to file necessary documents in a timely fashion. Pistritto v. Hartford Hospital, 3451 CRB-1-96-10 (Jan. 28, 1998). In the instant case, the claimant was granted four extensions of time to file various documents. He failed to file any of these documents in support of his appeal. Neither the respondents nor this board have been made aware of the issues that the claimant intended to raise on appeal, and we have no basis for review. As the claimant neglected to actively pursue his appeal, we dismiss his petition for review for failure to prosecute with proper diligence pursuant to Practice Book § 85-1. See Hyatt v. Ames Department Stores, Inc., 3533 CRB-6-97-2 (May 14, 1998); Gamber v. Olin Mills, Inc., 3194 CRB-4-95-10 (Feb. 19, 1997); Currin v. State of Conn./DMR Region 2, 16 Conn. Workers’ Comp. Rev. Op. 137, 2183 CRB-6-94-10 (Nov. 27, 1996).

Turning to the respondents’ appeal, we observe that the commissioner found the following relevant facts. On December 30, 1992, the claimant suffered a compensable injury to his back, left knee, and left hip. As a result of this injury, the claimant was found to have a 5% permanent partial impairment of his left knee, a 2½% permanent partial impairment of the back, and a 5% permanent partial impairment of the left upper extremity. Findings, ¶¶ G-I.

In November of 1994, the claimant’s left hip gave out while descending a flight of stairs causing him to fall. He sustained an injury to his right knee and was totally disabled from December 23, 1994 until August 11, 1995. The trial commissioner found this second injury compensable and ordered the respondents to pay temporary total disability benefits for the period of December 23, 1994 through August 11, 1995, specific indemnity for the 5% loss of use of the left knee beginning November 1, 1995, specific indemnity for the 2½% permanent partial impairment of the back beginning March 25, 1996, specific indemnity for the 5% loss of use of the left shoulder, and the outstanding medical bills of Drs. Kelley and Murphy as well as the bills for continuing treatment of the left hip. Findings, ¶¶ 1-5.

In their appeal, the respondents argue that the trier erred by finding that the claimant’s right knee injury was compensable and that it resulted in a period of total disability. They argue that the claimant did not present sufficient evidence to establish causation. In order to establish the requisite causal connection, a claimant must establish that his injury arose out of and in the course of employment. McNamara v. Hamden, 176 Conn. 547, 556 (1979). “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). “The power and duty of determining the facts rests on the commissioner, the trier of facts . . . [T]he conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Id., 347, citing Fair v. People’s Savings Bank, 207 Conn. 535, 538-39 (1988). The commissioner additionally has the discretion to choose which testimony and medical evidence to credit in making his factual findings, and this board may not second-guess those decisions. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

In the present case, the trial commissioner concluded that the claimant’s right knee injury was related to his compensable injury of December 30, 1992. Finding, ¶ 20. Dr. Kelley opined in his letter dated March 17, 1995 that “(the claimant’s) current right knee problem is a direct result of the workmens’ comp related left lower extremity injuries causing buckling and giving way in the left lower extremity thereby injuring his right knee.” Claimant’s Exhibit A. The trial commissioner, having the exclusive power to determine issues of credibility, found the opinion of Dr. Kelley on this issue to be persuasive. We are not in a position to reassess this evidence and disturb the commissioner’s findings. See Keenan v. Union Camp Corp., 49 Conn. App. 280 (1998); Rogers v. Laidlaw Transit, 45 Conn. App. 204 (1997).