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Allingham v. Burns International Security

CASE NO. 1977 CRB-1-94-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 20, 1995

JOAN ALLINGHAM

CLAIMANT-APPELLANT

v.

BURNS INTERNATIONAL SECURITY

EMPLOYER

and

HOME INDEMNITY INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Albert J. McGrail, Esq., McEleney & McGrail, 363 Main St., Hartford, CT 06106.

The respondents were represented by James Moran, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the February 14, 1994 Memorandum of the Commissioner acting for the First District was heard March 24, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 14, 1994 Memorandum of the Commissioner for the First District. She argues on appeal that the commissioner improperly determined that the Workers’ Compensation Commission did not have jurisdiction over the claimant’s claim. The respondents have moved to dismiss the appeal on the ground that it was untimely filed. We deny the motion to dismiss, and reverse the trial commissioner’s decision.

The claimant and respondents stipulated as to certain facts, including that the decedent was killed in the course of his employment with the respondent on May 24, 1979, while on temporary assignment in Rochester, New York. They also stipulated that this Commission has “personal and subject matter jurisdiction of this claim for benefits under Conn. Gen. Stat. Sec. 31-306, i.e. the Connecticut Workers’ Compensation Act is applicable pursuant to Cleveland” [referring to Cleveland v. U. S. Printing Ink, 218 Conn. 181 (1991)]. The only issue not agreed to in the stipulation was the fulfillment of the notice requirements of § 31-294 C.G.S. The commissioner found, however, that the parties could not stipulate to the jurisdiction of this Commission, and that the stipulated facts did not support Connecticut jurisdiction. Without reaching the notice issue, he dismissed the claimant’s claim.

The commissioner ’s decision is dated February 14, 1994. The claimant’s petition for review was not received until February 28, 1994. It notes that the decision was “received by McEleney & McGrail on February 18, 1994 by regular mail.” The respondents subsequently moved to dismiss the appeal based on untimeliness, as § 31-301(a) C.G.S. requires that an appeal be filed within ten days of the commissioner’s decision. We note that § 31-321 C.G.S. provides that all notices under this chapter shall be served personally or by registered or certified mail unless otherwise specifically provided. Section 31-300 C.G.S. does not abrogate § 31-321, merely stating that “the commissioner shall send to each party a written copy of his findings and award.”

In Conaci v. Hartford Hospital, 36 Conn. App. 298, 301 (1994), our Appellate Court noted that “the most reasonable interpretation of the limitation provision applicable to appeals to the compensation review board is one that takes into consideration notice to the party aggrieved by the commissioner’s decision.” It went on to hold that the § 31-301 ten day period “begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner’s decision,” although it declined to hold that the appeal period commences when notice of the appealable decision is received. Id., 303.

Here, of course, there is no finding as to the date notice of the decision was sent. We would normally require such a determination to be made in order to determine whether the petition for review was timely. See O’Connor v. United Parcel Service, 1741 CRB-4-93-5 (March 30, 1995) (CRB applied Conaci and remanded case for determination of date notice sent to claimant). However, we will not do that in this case for two reasons. First, notice was not sent pursuant to the method required in § 31-321, thus potentially prejudicing the claimant. Compare Jimenez v. Montero, 1826 CRB-4-93-8 (decided May 4, 1995).

Second, and more importantly, the trial commissioner deprived the claimant of due process when he based his Memorandum dismissing the claim on lack of subject matter jurisdiction. Even if the commissioner’s reasoning was correct, the claimant and respondents both assumed that the jurisdiction issue was settled by virtue of their stipulation of facts. Neither party was ever notified that subject matter jurisdiction was considered an issue by the commissioner, and neither party had an opportunity to argue on its behalf or present evidence accordingly. Although the issue of subject matter jurisdiction can be raised at any time, see, e.g., Peters v. State of Connecticut/Southern Connecticut State University, 13 Conn. Workers’ Comp. Rev. Op. 131, 134, 1616 CRB-5-92-12 (February 1, 1995), the commissioner should not have made a decision on the matter without providing both parties with a chance to be heard. Nothing less than due process requires that it be so. Southard v. Southard Development, 1891 CRB-4-93-11 n. 2 (decided April 27, 1995).

The trial commissioner is reversed, and the case is remanded to the First District for further proceedings.

Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.

Workers’ Compensation Commission

Page last revised: January 21, 2005

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