CASE NO. 616 CRD-6-87Workers’ Compensation Commission
AUGUST 12, 1988
The claimant was represented by Robert L. Hurney, Esq.
The respondents were represented by Ralph A. Russo, Esq., Montstream May.
This Petition for Review from the July 24, 1987 Finding and Award of the Commissioner for the Sixth District was heard March 25, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and A. Thomas White, Jr.
FINDING AND AWARD
The July 24, 1987 Finding and Award of the Sixth District is affirmed and adopted as the Finding and Award of this Division.
OPINION
JOHN ARCUDI, Chairman.
Claimant, an employee at Respondent’s gas station in Middletown, injured his right foot on or about October 15, 1983 while so employed changing a tire at that facility. Before 1983 there had been a previous injury to the same foot. Respondents have appealed the Sixth District July 24, 1987 ruling awarding benefits for that injury. Simultaneously with their appeal they requested extension of time within which to file their Reasons for Appeal and their Motion to Correct, Administrative Regulations Sec. 31-301-2 and Sec. 31-301-4.
They were granted until thirty days after the receipt of the transcripts to file a Motion to Correct and until two weeks after the trial Commissioner’s ruling on the Motion to Correct to file Reasons of Appeal. The final transcript was mailed to them by the Hearing Reporter August 25, 1987. No Motion to Correct or Reasons of Appeal were ever filed. Claimant filed a Motion to Dismiss Appeal for failure to plead in a diligent and timely manner November 5, 1987.
Sager v. GAB Business Services, Inc., 11 Conn. App. 693
(1987) following Practice Book Sec. 4056 holds “that where a motion to dismiss an appeal is based upon the `failure to file papers within the time allowed’, such motion shall be filed within ten days after the time when such paper was required to be filed”, id. at 697. The record here does not indicate that claimant’s Motion to Dismiss was filed within ten days of the deadline set for filing the Motion to Correct or the Reasons for Appeal. So we cannot act on the Motion to Dismiss.
However, Sec. 31-301, C.G.S., requires the Compensation Review Division to issue its decision within one year after the date of the appeal. Here, the appeal date was August 3, 1987. In order to comply as nearly as possible with the legislative mandate, rather than dismiss for failure to prosecute, we will address the matter on the merits.
The trial Commissioner noted some confusion in the testimony as to dates of injury, October 15, 1983 or October 22, 1983. He found October 15, 1983 to be the proper date. At lease one witness, Ralph Zanelli, had so testified (TR, June 19, 1985, pp. 3-4). Zanelli also corroborated that an injury had occurred while claimant was using the tire changing machine. There was testimony in Dr. Robert W. Geist’s July 25, 1985 deposition that the symptoms for which he treated claimant in October of 1983 and subsequently were from a new injury rather than from an earlier one.
Hence, there was a sufficient evidentiary basis for the Commissioner’s findings. The facts so found must stand unless they are “so unreasonable as to justify judicial interference”, Gordon v. United Aircraft Corp., 150 Conn. 328, 331 (1963), Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
The Sixth District decision is therefore affirmed and the appeal is dismissed. In accordance with Sec. 31-301c(b), C.G.S., interest is ordered on those amounts awarded claimant by the July 24, 1987 decision and not paid during the appeal.
Commissioners Frank Verrilli and A. Thomas White, Jr. concur.