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Cyr v. Domino’s Pizza

CASE NO. 2168 CRB-1-94-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 26, 1996

JAMES CYR

CLAIMANT-APPELLANT

v.

DOMINO’S PIZZA

EMPLOYER

and

ALEXSIS INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

LAWRENCE BRICK, ESQ.

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Steven H. St. Clair, Esq., 18 Old Goshen Road, P O. Box 570, Williamsburg, MA 01096.

Notice also sent to Mark Shapera, Esq., Gaucher, Peters & Shapera, 670 Main Street, Willimantic, CT 06226.

The respondent employer and insurer were not represented at oral argument. Notice sent to Kevin M. Blake, Esq., Cotter, Cotter & Sohon, 500 Boston Post Road, Milford, CT 06460.

The respondent Lawrence S. Brick, Esq. represented himself on appeal. Notice sent to 433 S. Main St., Suite 301, West Hartford, CT 06110.

This Petition for Review from the August 15, 1994 Finding and Award of the Commissioner acting for the First District was heard June 23, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. Tracy and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 15, 1994 Finding and Award of the Commissioner acting for the First District. He argues on appeal that the trial commissioner improperly ordered that Steven H. St. Clair, Esq., pay attorney’s fees and sanctions to Lawrence S. Brick. Esq. We dismiss the claimant’s appeal.

The trial commissioner found that Attorney Brick represented the claimant on his workers’ compensation claim with extreme competence. Through Brick’s efforts, the claimant received benefits and proper medical care despite the filing of several Forms 43 and 36 by the respondents. The trial commissioner approved a 20 percent legal fee of the $23,000 settlement, to which the claimant agreed. The insurer sent Brick a settlement check on January 7, 1994, which was turned over entirely to the claimant.

Although the claimant had agreed to pay the legal fees once the settlement check cleared, he did not do so. Instead, he hired Attorney St. Clair and placed the legal fees in an escrow account at the advice of his new counsel. St. Clair contacted Brick, and asked him to explain the basis of his fees. Brick did so, and informed St. Clair that the fee had been approved by a commissioner. Despite comprehensive and detailed explanations, nothing was paid to Brick, and he requested an informal hearing to resolve the issue. The day before the hearing, St. Clair informed the commissioner and Brick that he would not attend due to scheduling conflicts. St. Clair did not respond to the commissioner’s phone calls on the day of the hearing, and did not answer a letter written by the commissioner. A formal hearing was held two weeks later; despite proper notice to the claimant and his new counsel, no one appeared on the claimant’s behalf.

The commissioner concluded that failure to pay the fees without an explanation amounted to an inexcusable and unreasonable delay. He ordered the claimant to pay $4,600 to Brick within ten days of the order, along with interest at 12 percent. He also found the conduct of St. Clair unconscionable and unbecoming to an officer of the court and a member of the Connecticut bar. He ordered St. Clair to pay Brick $2,500 in attorney’s fees and sanctions along with 12 percent interest from the date of the order. The commissioner further recommended that Brick file a complaint against St. Clair with the Connecticut Statewide Grievance committee. The claimant appealed that decision.

Before we address the substance of the claimant’s appeal, we must address the issue of the late petition for review. Brick filed an objection to the appeal on the ground that it was filed late. This board may consider appeals filed within ten days of the date that meaningful notice of the commissioner’s decision was sent to the appellant. § 31-301(a); Conaci v. Hartford Hospital, 36 Conn. App. 298, 303 (1994). If we determine that an appeal was filed in an untimely manner, we lack jurisdiction to consider it further. Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720 (1995); O’Connor v. United Parcel Service, 13 Conn. Workers’ Comp. Rev. Op. 204, 1741 CRB-4-93-5 (March 30, 1995).

The Finding and Award is dated August 15, 1994. St. Clair filed an affidavit stating that he received notice of that decision on September 29, 1994. The claimant’s appeal was filed on October 5, 1994, six days later. Timeliness depends not on the date that notice was received, however; it is based on the date that meaningful notice was sent. Conaci, supra, 303-304. The record indicates that delivery of notice of the decision was attempted by certified mail to 816 N. Pleasant St., Amherst, MA 01002 on August 16, 1994 and again on August 20, 1994. The certified letter containing the decision was returned to the First District office unclaimed on August 31, 1994.

The testimony of Brick and the commissioner’s own statements demonstrate that St. Clair was well aware of the informal and formal hearings in May, 1994, even though he did not attend. He was therefore responsible for making sure that the Commission knew where to send notice of its decision. The address on the envelope was the same one that St. Clair had provided the Commission several months earlier, and there is no evidence in the record to suggest that it was incorrect at the time of the Finding and Award. We therefore hold that meaningful notice of the Finding and Award was sent on August 15, 1994, and that said notice met the requirements of § 31-301(a) and § 31-321 C.G.S. See also Jiminez v. Montero, 1826 CRB-4-93-8 (decided May 4, 1995).

Because the petition for review was not filed until October 5, 1994, approximately six weeks after the ten-day appeal period lapsed, the appeal must be deemed untimely. Our ruling on this issue divests this board of jurisdiction over any remaining claims of error, and we may consider this appeal no further. See Freeman, supra, 720.

The claimant’s appeal is dismissed.

Commissioners Roberta S. Tracy and Michael S. Miles concur.

Workers’ Compensation Commission

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