Opinion
CASE NO. 829 CRD-8-89-3
MAY 9, 1990
The claimant was represented by Catheryn Oakland, Esq., Cloutier Domnarski.
The respondent-employer was represented by Dean B. Kilbourne, Esq. and Robert L. Hirtle, Jr. Esq., Rogin, Nassau, Caplan, Lassman Hirtle.
The Second Injury and Compensation Assurance Fund was represented by Robin Wilson, Esq., Assistant Attorney General. However, the Fund did not appear at oral argument nor did the Fund file a brief on appeal.
This Petition for Review from the February 21, 1989 Ruling on Motion to Reopen of the Commissioner for the Eighth District was heard February 2, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte' and Frank Verrilli.
OPINION
This employer's appeal seeks to reverse the Eighth District's February 21, 1989 denial of a Motion to Reopen proceedings. The following are its Reasons of Appeal: whether (1) the trial commissioner erred in failing to find that claimant committed fraud or misrepresented certain facts in making his claim, (2) there was error in failing to find claimant had reduced his work schedule and thereby reduced his weekly earnings, and (3) it was error not to find that claimant was working at another restaurant at a period in time during which he claimed total disability.
All of the issues presented in the Reasons of Appeal are questions relating to the factual findings. However, we note no Motion to Correct was filed. Therefore, the factual findings of the commissioner must stand. Mack v. Blake Drug Co. 152 Conn. 523 (1965). Further, respondent concedes that the evidence before the trial commissioner was in conflict. We will not substitute our findings and conclusions for the trier's where those findings and conclusions for the trier's where those findings and conclusions depend on the weight and credibility of the witnesses. Adzima v. UAC/Norden Division, 177 Conn. 107, 118, (1979).
Finally even if we considered the ultimate issue, the denial of Motion to Reopen, we would not sustain respondent's appeal. Motions to Open are governed by Sec. 31-315 C.G.S. Sec. 31-315 permits the reopening of a Finding Award where there have been changed conditions of fact. The determination of whether changed conditions of fact indeed exist is a conclusion to be drawn by the trier. As stated recently in Velilla v. UTC/Hamilton Standard Division, 926 CRD-1-89-10 (April 17, 1990) appeal docketed A.C. 9102 (5/3/90) where the trial commissioner was similarly unimpressed by an appellant's evidence supporting a Motion to Reopen, we cannot substitute or conclusions for those of the trial commissioner unless the commissioner's conclusion was without evidence, See Adzima v. UAC/Norden Division, 177 Conn. 107, (1979); Battey v. Osborne, 96 Conn. 633 (1921); Powers v. Hotel Bond Co., 89 Conn. 143 (1915). See also, Fair v. People's Savings Bank, 207 Conn. 535 (1988).
Sec. 31-315 provides: Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.
We therefore dismiss the respondent's appeal.
Concluding as we have, pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
Commissioners A. Paul Berte' and Frank Verrilli concur.