Martin v. Starlift Equipment Co.

The claimant was represented by John D’Elia, Esq., Kennedy & Johnson, Long Wharf Maritime Center, 545 Long Wharf Drive, New Haven, CT 06511.

The respondents were represented by Brendan T. Canty, Esq., 10 Byington Place, Norwalk, CT 06850.

This Petition for Review from the June 1, 1995 Finding and Award of the Commissioner acting for the Third District was heard February 23, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the June 1, 1995 Finding and Award of the Commissioner acting for the Third District. The claimant has moved to dismiss the appeal for failure to comply with the time limit prescribed by § 31-301(a) C.G.S. After careful consideration, we remand this case to the trial commissioner for a determination of the date the Finding and Award was sent to the respondents.

The claimant was involved in a work-related motor vehicle accident on December 13, 1988, in which he sustained right shoulder and cervical spine injuries. The accident and following surgeries also led to emotional distress resulting in depression. The trial commissioner found that the claimant was entitled to temporary total disability benefits, but denied his claim for reimbursement of day care expenses. He also denied the respondents’ request that the claimant be required to seek the services of a rehabilitative nurse. The respondent’s petition for review was filed on June 14, 1995, thirteen days after the entry of the trial commissioner’s June 1, 1995 Finding and Award.

Section 31-301(a) 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 . . . .” The court in Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994), concluded that “the proper interpretation of the limitation period contained in General Statutes § 31-301(a) is that the 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. The respondents do not contest the fact that the Finding and Award is dated June 1, 1995, but claim not to have received notice until June 6, 1995. This argument slightly misses the point, because under Conaci, timeliness depends on the date notice of the decision is sent, not the date it is received. Id., 303-304; Cyr v. Domino’s Pizza, 2168 CRB-1-94-10 (decided Jan. 26, 1996). Nonetheless, implicit in this argument is a contention that notice was not mailed out on the date of the Finding and Award. Compare Vega v. Waltsco, Inc., 2078 CRB-2-94-6 n.1 (decided June 21, 1996) (CRB took cognizance of commission practice of sending out notice of decisions immediately, in absence of evidence to the contrary).

Of course, no one has yet made a finding as to the date when notice of the award was sent to the respondents. It is clear from Conaci that such a finding is necessary to resolve the issue of the appeal’s timeliness. This board has indicated that the trial commissioner, as the fact-finding authority, is in a better position than the CRB to make such a determination because of its evidentiary basis. O’Connor v. United Parcel Service, 13 Conn. Workers’ Comp. Rev. Op. 204, 206, 1741 CRB-4-93-5 (March 30, 1995). As was noted in Fair v. People’s Savings Bank, 207 Conn. 535 (1988), our hearing of an appeal from the commissioner is not a de novo hearing of the facts. “Although the review division may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise it is obliged to hear the appeal on the record and not ‘retry the facts’.” Id., 538-39. Also, in situations where additional evidence may be considered by this board, § 31-301-9 contemplates a written motion by a party seeking to introduce the additional evidence. No such motion was filed in this case. See O’Connor, supra. Thus, we hold that the instant case must be remanded to the original trial commissioner so that he may determine the date when notice of his award was sent to the respondents.