Lalanne v. Town of Greenwich

The claimant was represented by Russell J. Berkowitz, Esq., Berkowitz & Malowitz, Corporate Center West, 100 Prospect Street, Stamford, CT 06901, who did not appear at oral argument.

The employer and its insurer were represented by argaret E. Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the October 9, 1998 Finding and Dismissal of the Commissioner acting for the Seventh District was heard April 30, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 9, 1998 Finding and Dismissal of the Commissioner acting for the Seventh District. In that decision the trial commissioner found that the claimant failed to sustain his burden of proof that he suffered a compensable injury to his cervical spine on February 3, 1994 while working for the respondent employer. In support of his appeal, the claimant contends that the Finding and Dismissal is void because it was not issued within 120 days. In addition, the claimant contends that the trial commissioner erred by not finding that the claimant sustained a compensable injury as indicated by the medical report of his treating physician.

We will first address the claimant’s contention that the trial commissioner’s decision is invalid because it was made more than 120 days after the submission of proposed findings on May 2, 1997. According to § 31-300 C.G.S., the trial commissioner was required to issue a decision within one hundred twenty days of the close of the hearing. Our Supreme Court has held that the time period in § 31-300 is mandatory, and that prejudice need not be demonstrated to invalidate a late decision. Stewart v Tunxis Service Center, 237 Conn. 71, 76-80 (1996). However, the parties may waive a trial commissioner’s noncompliance with § 31-300, either explicitly or implicitly by conduct. Id. at p. 80; Dichello v. Holgrath Corporation, 15 Conn. Workers’ Comp. Rev. Op. 441, 2249 CRB-5-94-12 (Sept. 5, 1996). In the Stewart case, on remand from our Supreme Court this board stated that “when the 120-day time limit has long passed, and a party has made no indication that it has an objection to the lateness of a decision, this board is inclined to interpret that inaction as an intent to waive the 120-day time limit. A party shall not be allowed to choose to enforce its right to invalidate a ruling only after the party reviews the decision and decides that it is adverse to its interests, barring special circumstances.” Stewart v. Tunxis Service Center, 16 Conn. Workers’ Comp. Rev. Op. 69, 71, 1684 CRB-6-93-4 (October 30, 1996).

In the instant case, the claimant contends that he did not waive the 120 day rule because claimant’s counsel “inquired with the trial commissioner several times as to when the decision would be issued.” The claimant cites Holland v. UTC/ Pratt & Whitney, 3248 CRB-2-96-1 (Nov. 14, 1997). We find the Holland decision to be distinguishable, however, because in that case the appellant had written to the trial commissioner regarding the late ruling. Here, on the other hand, we do not have any record of the claimant’s protest regarding the 120 day rule.1 We have no record that the claimant objected to the delay of the issuance of a decision by the trial commissioner until he filed his Reasons of Appeal on October 23, 1998. “We will not allow parties to acquire a type of veto power over a decision by failing to object to a late award until they have an opportunity to see whether they approve of the result.” Minneman v. Norwich Board of Education, 2294 CRB-2-95-2 (Dec. 13, 1996), aff’d., 47 Conn. App. 913 (1997) (per curiam), cert. denied, 243 Conn. 962 (1998). We conclude that the claimant waived his right to enforce the 120-day time limit in § 31-300.

We now turn to the merits of the claimant’s appeal. The claimant contends that the medical report of the claimant’s treating physician, Dr. Rodda, supports the conclusion that the claimant’s cervical spine condition was caused by an injury at work on February 3, 1994, and is not contradicted by any other medical evidence. As we have often stated, this board does not retry the facts because the power and duty of determining the facts rests on the commissioner as the trier of fact. This 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)).

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). Moreover, a trial commissioner has the “right to reject testimony even if seemingly uncontradicted.” Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 235, 1000 CRD-5-90-4 (Oct. 30, 1991); see also Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996). In the instant case, the trial commissioner’s determination that the claimant’s cervical injury was not caused by the claimant’s opening a metal door at work on February 3, 1994 was based upon the weight and credibility which he accorded the evidence. The trial commissioner’s decision is amply supported by his findings of fact and by the evidence in the record, and we will thus not disturb it.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 We note the respondents state the following in their brief: “The respondents are unaware of any such ex parte communications with the commissioner.” BACK TO TEXT