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Lightborne v. City of Stamford

CASE NO. 1550 CRB-7-92-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 1, 1993

DAVID LIGHTBORNE

CLAIMANT-APPELLEE

v.

CITY OF STAMFORD

EMPLOYER

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant did not appear before either the proceedings before the trial commissioner nor at oral argument.

The respondent-employer was represented by Booth M. Kelly, Jr., Esq., Murphy and Beane, P.O. Box, 590, New London, CT 06520.

The Second Injury Fund was represented by Robin L. Wilson, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101-0120.

This Petition for Review from the October 30, 1992 Finding of the Commissioner for the Seventh District was heard October 29, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners John Arcudi and Donald H. Doyle, Jr.

RULING DISMISSING APPEAL PURSUANT TO PRACTICE SECTION 4055

JESSE FRANKL, CHAIRMAN. The respondent appellant’s brief dated October 7, 1993 filed with this body October 19, 1993 and received by the appellee October 21, 1993, was determined by this panel to be cause for dismissal of the appeal pursuant to Practice Book Section 4055. This ruling was announced from the bench by this panel at oral argument October 29, 1993.

In our ruling noted above, this body took the most unusual step of dismissing an appellant’s appeal on the basis that its failure to timely file its brief with this tribunal did, indeed, serve to prejudice the appellee in its defense of the instant matter. We note that the appellant failed not only to comply with this body’s briefing schedule, but its own request for an extension until August 27, 1993 to file its brief (granted by the Chairman’s letter dated July 15, 1993). The appellant’s brief (which is some twenty nine pages) was not filed with this tribunal until October 19, 1993. Thus, pursuant to Practice Book Section 4055 the appeal was dismissed.

In order to more fully comprehend the basis of this ruling we note the following. The Compensation Review Board’s deadline for the filing of briefs is set out by a briefing schedule contained in each calendar for oral argument.1

The original October 29, 1993 Calendar for Oral Argument dated June 29, 1993 and sent to the parties, provided that the appellant’s brief was due August 13, 1993 and the appellee’s brief was due September 3, 1993. The respondent appellant by letter dated July 9, 1993 and received July 13, 1993, requested an extension of time to file its brief. That request was granted until August 27, 1993 and in the Chairman’s letter granting same, the appellee, Second Injury Fund’s deadline for the filing of its brief was extended until September 17, 1993. Thereafter, this body received no other communication from the appellant until October 19, 1993 when it finally filed its brief.

However, that is not to say that the appellee, the Second Injury Fund, was similarly silent after the extended deadline for the filing of its brief. In a letter dated September 13, 1993 and received September 17, 1993, the appellee requested until October 8, 1993 to file its brief. The basis for that request was that the appellant had not yet filed its brief and the appellee required the appellant’s brief in order to effectively respond to the respondent appellant’s claims on appeal. That request was granted in our September 22, 1993 Ruling on Motion for Extension of Time to File Brief. On October 13, 1993 the appellee filed a Motion for Reassignment on the basis that the Appellant still had not filed its brief. We denied that motion, but on that same date issued an Addendum to Compensation Review Board October 29, 1993 calendar which instructed the appellant to show cause why its appeal should not be dismissed for failure to file its brief. Also cited in the addendum was a reference to Practice Book Sec. 4055. On October 19, 1993 the appellant finally filed its brief dated October 7, 1993 with the Compensation Review Board.

At oral argument the appellant offered no satisfactory reason why its brief in the instant appeal was filed in such a dilatory fashion. The appellant did contend that the rules for the filing of briefs before the Compensation Review Board were discretionary. The appellee at oral argument then argued that the lateness in the filing of the appellant’s brief unreasonably prejudiced the appellee. We agreed and thus, in a ruling from the bench at oral argument, announced our decision to exercise our discretion pursuant to Practice Book Section 4055. We then dismissed the appeal on the basis of the appellant’s untimely filing of its brief and the prejudice that the late filing caused the appellee in its defense to the appeal.

Therefore, the appellant’s appeal from the October 30, 1992 Finding of the Commissioner acting for the Seventh District was dismissed.

Commissioners John Arcudi and Donald H. Doyle concur.

1 While this practice differs from our Appellate and Supreme Court’s procedural practice, we note that, generally, it provides appellate parties with a longer period of time to file briefs than would be permitted in an appeal before either the Appellate or Supreme Court. See Practice Book Sec. 4071. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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