Blades v. Redman & Turnquist

The respondents were represented by Matthew S. Necci, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the November 2, 2006 Finding and Award of the Commissioner acting for the Second District was heard December 14, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from the November 2, 2006 Finding and Award of the Commissioner acting for the Second District. During the pendency of this appeal a number of filings relating to procedural aspects of this case were submitted. Among these filings was claimant’s counsel’s request to withdraw from representing the claimant. That request was heard July 13, 2007. Following the hearing the claimant forwarded a letter to the Compensation Review Board in which he indicated he wished to relieve Attorney Cicchiello as his attorney. Thereafter we issued our August 21, 2007 Ruling On Counsel’s Motion to Withdraw Appearance in which we granted counsel’s request.

Given the procedural filings in relation to claimant’s representation and in an effort to afford claimant adequate time to prosecute this appeal, oral argument for the consideration of the appeal on its merits was heard December 14, 2007. In advance of that hearing the parties were provided with a briefing schedule that required the appellant’s filing of a brief by November 6, 2007. On November 8, 2007 the respondent filed a Motion to Dismiss on the basis of the claimant-appellant’s failure to file a brief. In support of its Motion to Dismiss the respondents argue that issues raised in the appeal are nothing more than an attack on the trial commissioner’s factual findings, and thus, as the claimant did not file a Motion to Correct nor provide citations to the evidentiary record giving support to a claim that the Commissioner’s findings and conclusions are legally inappropriate, the appeal should be dismissed.

In the November 2, 2006 Finding and Award at issue, the trial commissioner found the claimant was employed by the respondent as a carpenter. In December 2003 the claimant fell from scaffolding and while the incident was accepted by the respondent the extent of disability resulting from that fall was contested. In the proceedings below the claimant contended he injured his back and left shoulder and wrist as a result of the December 2003 incident. The claimant sought temporary partial and permanent partial disability benefits as well as authorization and payment for medical bills.

The commissioner awarded the claimant permanent partial disability benefits for his back as well as authorizing payment for medical treatment prior to the date of maximum medical improvement. All other claims were dismissed.1

The essence of the appellant’s argument is that the trial commissioner should have found in the claimant’s favor on all issues. However, the determination of claimant’s entitlement to the benefits claimed is based on the weight and credibility the trial commissioner assigned to the evidence. In the instant matter the trial commissioner found in ¶ B, “[t]he claimant is a poor historian and his testimony at his deposition and at trial was very inconsistent, and accordingly is found to be not credible.” Further, the trial commissioner found that the claimant suffered a previous fall in December 2002 and injured his back, left shoulder, elbow and wrist. Additionally, the trier concluded any claim relating to the December 2002 fall was untimely as no written notice of claim was filed within one year nor were any of the constructive notice provisions of § 31-294c met. The trial commissioner did conclude that the December 2003 fall made the claimant’s back injury worse and awarded benefits accordingly.

On review we will not disturb the findings and conclusions of the trial commissioner unless contrary to law, without evidentiary support or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). We find the November 2, 2006 Finding and Award devoid of any such error. The trial commissioner’s conclusion is supported by the record.

We therefore affirm the November 2, 2006 Finding and Award of the Commissioner acting for the Second District.

Commissioners Amado J. Vargas and Scott A. Barton concur.

1 We note ¶ 2 of the Finding and Award states that the claimant’s claim for a right shoulder, elbow and wrist injury was denied. It appears that this is a scrivener’s error. The finding should have referenced a left shoulder, elbow and wrist injury, as all other parts of the Finding and Award references left sided injuries. BACK TO TEXT