Opinion
CASE NO. 1322 CRD-8-91-10
SEPTEMBER 13, 1993
The claimant was represented by I. Edmund Hare, Jr., Esq.
The respondents were represented by Margaret Corrigan, Esq. and Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the October 1, 1991 Finding and Dismissal of the Commissioner for the Eighth District was heard September 25, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Frank J. Verrilli and James J. Metro.
OPINION
The claimant petitioned for review from the Eighth District Commissioner's October 1, 1991 Finding and Dismissal. The trial commissioner found that the claimant had failed to establish that his low back injury arose out of an alleged October, 1988 workplace incident. On appeal, the claimant contends that the decision should be reversed because (1) it was rendered more than 120 days after the close of the formal hearing and (2) he sustained his burden of proving the compensability of the claimed injury. We affirm the Finding and Dismissal.
The claimant's first claim requires little discussion. General Statutes Sec. 31-300 requires that a commissioner issue a decision no later than 120 days after the conclusion of any hearing. Although in this case 126 days elapsed between the conclusion of the formal hearing and the entry of the trial commissioner's Finding and Dismissal, the claimant has not alleged any prejudice due to this delay and therefore cannot obtain a new hearing on these grounds. Stevens v. City of Hartford, 8 Conn. Workers' Comp. Rev. Op. 134, 831 CRD-1-89-2 (1990); see also Besade v. Interstate Security Services, 212 Conn. 441, 450-52 (1989).
The claimant next claims that the commissioner improperly concluded that the claimant had not met his burden of proof establish compensability. Essentially, the claimant asks us to retry the facts. This we cannot do as the power and duty of determining the facts rests on the commissioner, the trier of facts. Fair v. People's Savings Bank, 207 Conn. 535, 538-42 (1988). Here, the trial commissioner apparently did not find the claimant's version of how the injury occurred to be credible based on gaps and inconsistencies in the evidence. "The trier of the facts determines with finality the credibility of the witnesses and the weight to be accorded their testimony." (Internal quotation marks omitted) Miller v Kirshner, 225 Conn. 185, 198 (1993); State v. Robinson, 213 Conn. 243, 256 (1989). This means that the commissioner was free to believe some, all or none of the claimant's testimony State v. Sherbacow, 21 Conn. App. 474, 480, cert. denied, 216 Conn. 808 (1990). Because the conclusions drawn by the trial commissioner from the facts found did not result from an incorrect application of the law or from an inference illegally or unreasonably drawn from the subordinate facts, the commissioner's conclusions must stand. Fair v. People's Savings Bank, supra, 539.
We, therefore, affirm the trial commissioner and deny the appeal.
Commissioners Frank J. Verrilli and James J. Metro concur.