Summary
In Ward v. Chesebrough-Ponds, Inc., 10 Conn. Workers' Comp. Rev. Op. 111, 1161 CRD-7-91-1 (1992), we stated that in Trinkley "held that the time period for filing appeals to the Compensation Review Division begins to run when notice of an award is given to the party wishing to appeal."
Summary of this case from Conaci v. Hartford HospitalOpinion
CASE NO. 1161 CRD-7-91-1
MAY 8, 1992
The claimant was represented by Matthew Shafner, Esq., and Nathan Julian Shafner, Esq., both of O'Brien, Shafner, Bartinik, Stuart Kelly.
The respondents were represented by Jason Dodge, Esq., and Margaret Corrigan, Esq., both of Pomeranz, Drayton Stabnick.
This Petition for Review from the December 24, 1990 Finding and Dismissal of the Commissioner for the Seventh District was heard November 22, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Gerald Kolinsky and Donald H. Doyle.
OPINION
Claimant appeals the commissioner's conclusion dismissing the claim. Respondent contends the appeal was filed late and should therefore be dismissed. The claim was based on alleged asbestos exposure in the workplace causing a disabling lung disease.
The commissioner's decision is dated December 24, 1990. Claimant's counsel mailed a Petition for Review on January 2, 1991, received in the Chairman's office January 3, 1991. However Sec. 31-301(a) required the appeal to be filed in the office of the Seventh District Commissioner where the case originated. When counsel realized the error, he faxed a copy of the Petition to the district January 7, 1991.
In Trinkley v. Ella Grasso Regional Center, 220 Conn. 739 (1992), the court court relied on Murphy v. Elms Hotel, 104 Conn. 351, 352 (1926) and held that the time period for filing appeals to the Compensation Review Division begins to run when notice of an award is given to the party wishing to appeal. Further Trinkley suggests that a party seeking dismissal for the untimely filing must show prejudice as a result thereof. Here, as in Trinkley, there was no allegation of prejudice and the filing in the Chairman's office by the tenth day was arguably substantial compliance.
The claimant's appeal essentially attacks the commissioner's factual determination. More precisely, it attacks the conclusion that there were not sufficient facts presented in evidence to sustain the burden of proving that claimant's disability arose from exposure to asbestos in the workplace. The conclusion that not enough facts have been presented to permit the factual determination sought by the claimant is itself a factual determination. As such it is within the trier's province. Fair v. People's Savings Bank, 207 Conn. 535 (1988). See also, Besade v. Interstate Security Services, 212 Conn. 441 (1989). We may not agree with the trier's determination, but we do not think it an unreasonable conclusion justifying appellate interference.
There was evidence presented below from which the trier could reasonably have concluded claimant did not satisfy the burden of proof. See e.g. Paragraphs 15-18. See also, November. 19, 1988 Inspection Report of Robert C. Brown, Hygenix, Inc., Defendant's Exhibit 2, March 1, 1989 Letter of Robert C. Brown, Hygenix, Inc., Defendant's Exhibit 3, and November 2, 1990 [TR] at 5, 9, 44, 66-70.
We therefore affirm the Seventh District and dismiss the appeal.
Commissioners Gerald Kolinsky and Donald H. Doyle concur.