Samela v. City of New Haven

The respondent was represented by Frank M. Grazioso, Esq., Grazioso & Hosen, 746 Chapel Street, New Haven, CT 06521.

This Petition for Review from the July 9, 1997 Finding of Dismissal of the Commissioner acting for the Third District was heard May 8, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 9, 1997 Finding of Dismissal by the Commissioner acting for the Third District. The trial commissioner found in that decision that the claimant did not sustain a physical injury on June 13, 1996, and subsequently denied his claim for replacement of his eyeglasses pursuant to § 31-311 C.G.S. On September 16, 1997, the respondent filed a Motion to Dismiss for failure to file a timely appeal. We grant that motion.

The claimant was employed as an industrial arts teacher for the City of New Haven on June 13, 1996. While teaching a class for special education students, a student broke the claimant’s glasses. The incident was reported immediately, and the claimant filed a workers’ compensation claim on June 26, 1996 with the Third District.

A petition for review must be filed within ten days of the entry of a trial commissioner’s decision for this Board to be able to consider an appeal. Sec. 31-301(a) C.G.S. Failure to file a timely appeal removes a case from this Board’s subject matter jurisdiction. Here, the claimant filed his petition for review with the Third District on August 26, 1997, forty-eight days after the trier’s July 9, 1997 decision was entered. We thus lack subject matter jurisdiction to hear this appeal and have no choice but to grant the respondent’s Motion to Dismiss. See Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994); Vastola v. A.C.E.S., 3448 CRB-3-96-10 (Jan. 16, 1998).

Even if this Board had jurisdiction to hear this appeal, the claimant would not prevail on the merits. We cannot retry the facts of a case because the power to determine the facts rests with the trial commissioner. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Webb, supra, 71.

The claimant sought payment for his broken eyeglasses pursuant to § 31-311 C.G.S. Under that section, an employer is liable for payments to replace eyeglasses when such damages accompany a bodily injury. The trial commissioner found based on the evidence before him that the claimant did not sustain a physical injury on June 13, 1996. In neither the June 13, 1996 accident investigation report nor his June 26, 1996 Form 30C does the claimant mention a physical injury. The claimant merely states that a student snatched and dropped his glasses, stepping on them and crushing them. In fact, the First Report of Injury reflects that the claimant “placed [his glasses] on [his] marking book to record student progress,” whereupon they were seized by a student. No mention is made of an eye injury. Claimant’s Exhibits B & C. It is not until the July 23, 1997 letter from CHC Physicians that an eye injury is mentioned. The trial commissioner concluded upon this evidence that the claimant’s alleged eye injury did not arise out of and in the course of his employment. Having found no compensable physical injury, the trier correctly dismissed the § 31-311 claim for the broken glasses. We could not reverse such a decision on appeal.