State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Roussel v. Village Gate of Farmington

CASE NO. 4918 CRB-6-05-2



FEBRUARY 28, 2006











The claimant was represented by Herbert Watstein, Esq., Watstein & Watstein, 685 Middle Street, P.O. Box 1360, Bristol, CT 06011.

The respondents were represented by Frank Ancona, Esq., Law Offices of David Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

This Petition for Review from the January 20, 2005 Finding and Dismissal of the Commissioner acting for the Sixth District was heard August 26, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 20, 2005 Finding and Dismissal of the Commissioner acting for the Sixth District. He argues on appeal that the trier should have held that his present back condition is the result of a compensable 1992 injury. We find no error, and affirm the decision of the trial commissioner.

Prior to consideration of the merits of claimant’s appeal, we must address fundamental jurisdictional issues. In 1950, Supreme Court Justice Robert Jackson wrote, “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950). The present appeal requires us to evaluate whether the claimant’s initial appeal filing comports with the legal standards of Mullane and the statutory standards of § 31-301(a) C.G.S. Upon determination of whether this board has jurisdiction to hear this appeal, we must then determine whether the trial commissioner’s finding that this claim was unpersuasive and was barred by a prior stipulation was legally and factually correct.

The substantive issue herein involves a series of back injuries suffered by the claimant in the 1990’s. A compensable shoulder injury occurred on December 11, 1992, which was resolved via a Voluntary Agreement dated May 17, 1995 and a stipulation approved by the commissioner on October 16, 1997. The claimant suffered a subsequent compensable shoulder injury on January 18, 1994. He continues to suffer back pain. Formal hearings were held July 1, 2003, September 17, 2003 and August 30, 2004 on the issue of whether the subsequent injury and his present distress should be linked to the initial injury. On January 20, 2005, the trial commissioner issued a Finding and Dismissal determining that the 1992 injury was not a substantial cause of the subsequent back condition.

Any appeal of this decision required compliance with Connecticut General Statutes Sec. 31-301(a) “At any time within twenty days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties.” Claimant’s attorney evidently submitted a Motion for Extension of Time to File Reasons of Appeal to the Sixth District office on or about February 3, 2005. There was a delay in forwarding this notice to the Compensation Review Board. On February 17, 2005, a Petition for Review and a Motion to Correct was hand filed by claimant’s attorney.

On March 15, 2005, the respondents filed a Motion to Dismiss the appeal as untimely under § 31-301(a) C.G.S. Since compliance with statutory filing requirements goes to the jurisdiction of the board to consider the appeal, Cyr v. Domino’s Pizza, 45 Conn. App. 199 (1997), we address the issue of whether the appeal was properly filed prior to considering any other issue.

The question is whether the filing of February 3, 2005 was sufficient to toll the running of the twenty-day appeal period. While it is not styled as an “appeal,” this board has decided in prior rulings that motions to extend time to file an appeal constitute adequate compliance with the statute to preserve jurisdiction, provided they are filed within the twenty-day period. See Tyc v. Calabrese Construction, 4449 CRB 1-01-10 (October 23, 2001) and Weber v. Electric Boat, 4423 CRB-2-01-7 (August 2, 2001). Claimant’s filing sufficiently avers an intent to appeal the trial commissioner’s ruling to fall within our holding in Tyc, “[w]e may not simply declare that the claimant’s file remain open in order to afford him a future opportunity to file an appeal. However, this does not mean we must dismiss the action altogether. Instead, this board will construe the claimant’s motion for extension of time as an appeal petition. . . ” Id.

Had the claimant failed to promptly perfect his appeal, the narrow accommodation provided by the Tyc precedent would have been ineffectual. That decision is predicated on the basis the appeal will be immediately forthcoming since the file cannot remain open to file a “future appeal.” The facts herein indicate that within two weeks after the initial filing of the motion to extend time, the reasons for appeal were provided to the board.

The respondents provide no representation in its motion to dismiss or in its brief that it was in any way prejudiced by the manner in which its appeal was commenced. The February 3, 2005 filing responded to the trial commissioner within the statutory time period of § 31-301(a) C.G.S. and the February 17, 2005 filing fully addresses any concerns consistent with the Mullane precedent as to the parties being adequately informed as to the issues in dispute. In the absence of any prejudice to the respondents, the board concludes that the filing of the motion to extend time successfully preserved the board’s jurisdiction over the appeal. To dismiss an appeal over the adequacy of papers filed during the statutory appeal period, in the absence of prejudice to the opposing party, would be an overly narrow construction inconsistent with the humanitarian and remedial purposes of the Workers Compensation Act. See DeFelippi v. Wal-Mart Stores, Inc., 4349 CRB-5-01-1 (January 12, 2002) (faxed filing successfully tolled § 31-301(a) C.G.S. appeal period) and Hicking v. State/Department of Correction, 4825 CRB-2-04-6 (July 14, 2005)(Motion to Reopen Finding filed within twenty-day period tolls § 31-301(a) C.G.S. appeal period.)

Having resolved the jurisdictional arguments in the claimant’s favor, one now turns to the merits of the case in question. The appellant failed to submit an appellant brief on schedule and on August 4, 2005, a request for an extension of time was submitted as claimant’s counsel claimed a heavy trial schedule and the departure of the claimant’s original attorney necessitated the extension. Respondents filed their brief on July 7, and their reaction was to file an objection received on August 8, pointing out the failure to file a brief may cause an appeal to be dismissed. The board declined to dismiss the appeal on the papers and held a hearing on August 26.1

A review of the record before the trial commissioner indicates a full hearing (held over a number of sessions) was conducted on the claim. The trial commissioner considered in great detail the medical evidence provided by the claimant that his former physician, Dr. Calogero, had linked the claimant’s 1992 injury, a 1994 injury and his subsequent back problem. It was argued by the respondents that his current doctor, Dr. Calderon, had misinterpreted Dr. Calogero’s letter and had confused the appropriate dates in question. Respondents’ physician, Dr. Jeffery Steckler, conducted an examination of the claimant in 2004 and concluded the 1992 injury was not a pertinent cause to his present medical condition.

The commissioner concluded after hearing and reviewing the conflicting medical evidence that the claimant’s doctor was “unpersuasive” on the issue of whether his 1992 injury was a contributing cause to his subsequent back problems. All judgments of evidentiary credibility are left solely to the trial commissioner, who is charged with deciding which of the documentary exhibits and witnesses are the most believable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); the burden of proof in a Workers’ Compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001). This board may not reverse decisions regarding the credibility of witnesses on review, and may not enter its own findings in place of those of the trial commissioner, Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

For the foregoing reasons, we need not consider the issue of whether the claimant’s October 16, 1997 stipulation estopped him from seeking further compensation for his 1992 injury. The claim was denied based on the evidence presented to the trial commissioner and the existence of the 1997 stipulation had no impact on what ultimately proved to be unpersuasive evidence to convince the trier of fact. The outcome would have been the same had no stipulation ever been entered in this case.

Therefore, the trial commissioner’s decision is affirmed and the claimant’s appeal is dismissed.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

1 We consider the merits of this appeal because otherwise we would penalize the claimant for counsel’s procedural missteps. The imposition of such a penalty in this instance would be inconsistent with the humanitarian and remedial purposes of the Workers’ Compensation Act. BACK TO TEXT

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