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Cioffi v. Trumbull Marriot

CASE NO. 2209 CRB 4-94-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 20, 1996

CHERIE CIOFFI

CLAIMANT-APPELLANT

v.

TRUMBULL MARRIOT

EMPLOYER

and

ARGONAUT INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared on her own behalf.

The respondents were represented by James J. Carroll, Esq., McGrail, Carroll & Sheedy, 265 Church Street, P.O. Box 1111, New Haven, CT, 06505.

This Petition for Review from the June 9, 1994 Finding and Dismissal of the Commissioner acting for the Fourth District was heard October 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

DISMISSAL

JESSE M. FRANKL, CHAIRMAN. The claimant has filed a late petition for review from the Fourth District Commissioner’s June 9, 1994 Finding and Dismissal. In that decision, the trial commissioner found that the claimant had received approximately one hundred and fifty weeks of § 31-308a benefits, and denied the claimant’s request for further discretionary benefits pursuant to § 31-308a. In support of her appeal, the claimant contends that at the formal hearing, her attorney did not fully present her reasons for requesting continued § 31-308a benefits, including medical documentation to support her claim for such benefits.

The claimant filed a letter of appeal on June 24, 1994, fifteen days after the trial commissioner’s Finding and Dismissal had been issued on June 9, 1994. The claimant’s appeal was not filed within the time limit prescribed by § 31-301(a) C.G.S., which states that “[a]t any time within ten days after entry of an award by the commissioner . . . either party may appeal therefrom to the compensation review board by filing in the office of the commissioner . . . an appeal petition . . . .” (Emphasis added). We have consistently ruled that the appealing party must file its appeal within the prescribed time period in order for this board to have subject matter jurisdiction over the appeal. Corona v. Uniroyal Chemical, Inc., 9 Conn. Workers’ Comp. Rev. Op. 105, 987 CRD-5-90-3 (March 13, 1991) (dismissing appeal to this board filed on the eleventh day following trial commissioner’s decision); Famiglietti v. Dossert Corporation, 8 Conn. Workers’ Comp. Rev. Op. 65, 804 CRD-5-88-12 (April 17, 1990); Johnston v. ARA Services Inc., 7 Conn. Workers’ Comp. Rev. Op. 19, 20, 765 CRD-7-88-8 (June 29, 1989).

The claimant’s letter of appeal which was filed on June 24, 1994, is dated June 19, 1994, and indicates that she had received and read the Finding and Dismissal which had been issued on June 9, 1994.1 Under these circumstances, we do not find that it is necessary to remand this issue for a determination of the date on which the commissioner’s decision was sent. See Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994). We conclude that the claimant’s appeal was not filed within the time limits required by § 31-301(a) and we thus must dismiss it as untimely.

Even if we were to consider the merits of the claimant’s appeal, we would be compelled to affirm the trial commissioner’s decision. A commissioner’s decision to grant or deny benefits under § 31-308a is discretionary.2 If the statutory factors are considered by the trial commissioner, this board may not overturn the trial commissioner’s determination. Richmond v. General Dynamics Corp./Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 345, 1825 CRB-2-93-8 (April 27, 1995); Burgos v. United Technologies, 12 Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 1994). In the instant case, the trial commissioner’s denial of further 31-308a benefits is amply supported by the record.

The claimant’s appeal is dismissed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 The trial commissioner’s decision was issued on Thursday, June 9, 1994. The claimant’s letter of appeal is dated Sunday, June 19, 1994. As mail is not delivered on Sunday, the claimant or her attorney must have received the trial commissioner’s decision on or before June 18, 1994, within ten days of the commissioner’s June 9, 1994 decision. Furthermore, we note that on behalf of her appeal, the claimant submitted numerous papers, including a letter from her attorney dated June 13, 1994 which states: “Please find enclosed Commissioner Miles’ Finding and Dismissal regarding further 31-308a benefits dated 6/9/94..... If you do intend to appeal this decision, I suggest that you contact another attorney as soon as possible as it must be filed by 6/20/94 or the appeal with (sic) be time barred.” BACK TO TEXT

2 Section 31-308a provides in relevant part: [T]he commissioner . . . may award additional compensation benefits for such partial permanent disability equal to two-thirds [now seventy-five percent] of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, . . . and the weekly amount which such employee will probably be able to earn thereafter, . . . to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and the employee’s age. . . . The duration of such additional compensation shall be determined upon a similar basis by the commissioner.” BACK TO TEXT

Workers’ Compensation Commission

Page last revised: May 11, 2005

Page URL: http://wcc.state.ct.us/crb/1996/2209crb.htm

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