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Vega v. Waltsco, Inc.

CASE NO. 2078 CRB-2-94-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 21, 1996

JOSE VEGA

CLAIMANT-APPELLANT

v.

WALTSCO, INC.

EMPLOYER

and

ROLLINS HUDIG HALL

INSURER

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Angelo Cicchiello, Esq., 364 Franklin Ave., Hartford, CT 06114.

The respondents were represented by Angelo Paul Sevarino, Esq., 110 Day Hill Road, Windsor, CT 06095-1794.

The Second Injury Fund was not represented at oral argument. Notice sent to Philip Schulz, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the May 26, 1994 Finding and Award of the Commissioner acting for the Second District was heard June 23, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 26, 1994 Finding and Award of the Commissioner acting for the Second District. The petition for review was filed on June 9, 1994. Before we address the merits of the appeal, we must first decide whether the appeal petition was filed in a timely manner. This board lacks subject matter jurisdiction to consider the merits of an untimely appeal. Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720 (1995); Raucci v. W. H. Brady Co., 2201 CRB-3-94-11 (decided Dec. 7, 1995).

Section 31-301(a) C.G.S. requires that an appeal be filed with the CRB within ten days after the entry of a trial commissioner’s award. In Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994), our Appellate Court held that this 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.” Id., 303; see also Freeman, supra; O’Connor v. United Parcel Service, 13 Conn. Workers’ Comp. Rev. Op. 204, 206, 1741 CRB-4-93-5 (March 30, 1995). Our first task is to decide what that day was in this particular case.

Although the Finding and Award is dated May 26, 1994, the claimant’s attorney, Angelo Cicchiello, filed an affidavit stating that he first learned of the decision on Friday, June 3, 1994, when the trial commissioner returned his telephone call to tell him the decision had been issued. The Second District office then faxed Cicchiello a copy of the decision that day. Cicchiello attested that he needed to confer with his client regarding an appeal because the award was partially favorable to him. On Tuesday, June 7, Cicchiello learned that his client had previously received a copy of the Finding and Award in the mail. An attorney in Cicchiello’s office filed a petition for review on June 9. None of the facts in this affidavit are contested by the respondents.

The question before us thus becomes whether meaningful notice was sent on May 26, 1994, when the decision was mailed to the claimant,1 or on June 3, 1994, when the decision was faxed to the claimant’s attorney. If the former is true, then the appeal was due on Monday, June 6, 1994, and we would have to dismiss the petition for review for untimeliness. If the latter is true, then the appeal would have been filed before its due date of June 13, 1994, and would thus be timely.

We note that none of the opinions previously considered by this board have attempted to draw a distinction between the party wanting to appeal and that party’s attorney for the purpose of determining the date that notice of a decision was sent. However, in Hveem v. State of Connecticut, 9 Conn. Workers’ Comp. Rev. Op. 5, 6, 897 CRD-5-89-7 (Jan. 4, 1991), the claimant alleged that the respondent failed to comply with the requirements for serving notice in § 31-321 C.G.S. because it sent a disclaimer of liability to claimant’s counsel rather than the claimant. In a brief discussion of this point, this board stated that upon remand, the trial commissioner could grant the claimant’s Motion to Preclude if he found that point in favor of the claimant. Ironically, in our case it is the fact that notice went to the claimant rather than his counsel that is being challenged as insufficient to trigger the running of the appeal period.

Though it would seem odd to consider personal service on a claimant legally insufficient to satisfy the requirement of “meaningful notice,” especially given the Hveem decision, an important difference between this case and Hveem is that § 31-294c(b) C.G.S. specifically requires notice of a disclaimer to be sent to the employee in accordance with § 31-321, while § 31-300 C.G.S. requires the commissioner to “send to each party a written copy of his findings and award.” The notice requirement in Hveem, therefore, was specific to the claimant as the “employee” rather than to the claimant’s “party.” We must consider whether “party” should be construed in the instant case to refer exclusively to the claimant’s attorney.

The Workers’ Compensation Act does not define “party,” but Black’s Law Dictionary states that a “party” is a “person concerned or having or taking part in any . . . proceeding, considered individually. . . .‘Party’ is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a legal suit is brought, . . . whether composed of one or more individuals and whether natural or legal persons.” There is nothing inherent in this definition to suggest that “party” does not incorporate a claimant personally. In fact, if read conservatively, the term would more likely exclude the attorney than the client.

The reality is, of course, that a claimant generally takes no action himself once he hires an attorney to represent him on a matter. Instead, notices of court proceedings and correspondence from other parties are directed to the attorney, who is responsible for protecting his client’s rights and interests while keeping the claimant informed. Further, the claimant is insulated from direct contact with the attorney of another party, as all communications in regard to the case must be addressed to the claimant’s lawyer first. Rules of Professional Conduct § 4.2. Thus, as his client’s representative, the attorney becomes the spokesperson for the party that engages his services.

In that light, we recognize that notice of a decision that is sent to a claimant rather than his attorney generally is not being placed in the hands of the individual who is best equipped to take action on it. However, it is a big step from that notion to the idea that notice sent directly to a claimant is not “meaningful notice” as a matter of law. A person who hires an attorney does not cease to be a legally competent individual, and cannot be presumed incapable of comprehending the need to protect his rights. He certainly continues to be a “party” to his action, and a “party” within the meaning of § 31-300.

Although it would have been preferable for the claimant’s attorney to have received notice of the trial commissioner’s decision, we cannot hold that the direct mailing of the award to the claimant did not rise to the level of meaningful notice. The claimant could very easily have contacted his attorney when he received notice of the decision, but did not do so. He also could have filed an appeal himself. The fact that he hired an attorney did not nullify his status as the claimant and as a valid receiver of notice in his workers’ compensation case. Thus, we hold that the appeal period began to run on May 26, 1994, when notice of the decision was sent to the claimant, and that said period expired before the petition for review was filed. Accordingly, we lack jurisdiction to consider the appeal any further. See Freeman, supra, 720.

The claimant’s appeal is dismissed.

Commissioners Roberta S. Tracy and Amado J. Vargas concur.

1 The claimant has not attempted to suggest that notice of the trial commissioner’s award was sent to the claimant later than May 26, 1994, or that such notice was otherwise defective in some manner. Compare Allingham v. Burns International Security, 14 Conn. Workers’ Comp. Rev. Op. 333, 1977 CRB-1-94-2 (decided Sept. 20, 1995). In determining the date that notice of a commissioner’s decision was sent, this board is cognizant of the regular practice of the Workers’ Compensation Commission of sending out notice of its decisions immediately. Without evidence to suggest that such procedure was not followed in a given case, we will usually presume that the date on the decision accurately reflects the date notice was mailed to the parties. See Trinkley v. Ella Grasso Regional Center, 220 Conn. 739, 743-44 (1992) (strong presumption of regularity exists in the proceedings of a public body, including timeliness of an appeal to this board); Morelli v. Manpower, Inc., 34 Conn. App. 419, 423 (1994) (standard notation used by clerk’s office raised rebuttable presumption that notice was sent and received in absence of finding to contrary). BACK TO TEXT

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