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Ayres v. United Methodist Homes of CT

CASE NO. 3207 CRB-4-95-10

CASE NO. 3294 CRB-4-96-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 20, 1997

LINDA AYRES

CLAIMANT-APPELLANT

v.

UNITED METHODIST HOMES OF CT.

EMPLOYER

and

CONNECTICUT HOSPITAL ASSOCIATION WORKERS’ COMPENSATION TRUST

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant, appearing pro se on appeal, was not represented at oral argument. Notice sent to Linda Ayres.... Notice also sent to Thomas Weihing, Esq., Daly, Weihing & Bochanis, 1115 Main St., Bridgeport, CT 06604.

The respondents were represented by John Letizia, Esq., Letizia & Ambrose, 1764 Litchfield Tpke., Woodbridge, CT 06525. Notice also sent to Michael LaVelle, Esq., Pullman & Comley, 850 Main St., Bridgeport, CT 06604, who represented the employer at the proceedings below.

These Petitions for Review from the October 17, 1995 Finding and Dismissal of the Commissioner acting for the Fourth District and the March 1, 1996 Finding and Denial of Motion to Reopen by the Commissioner acting for the Fourth District were heard March 14, 1997 before a Compensation Review Board panel consisting of Commissioners James J. Metro, John A. Mastropietro and Stephen B. Delaney.

OPINION

JAMES J. METRO, COMMISSIONER. The pro se claimant has petitioned for review from the October 17, 1995 Finding and Dismissal of the Commissioner acting for the Fourth District, and the March 1, 1996 Finding and Denial of Motion to Reopen of the Commissioner acting for the Fourth District. We discuss these matters separately, including the Motions to Dismiss that the respondents have filed in both cases.

In the first case, the issue before the trial commissioner was whether § 31-316 C.G.S. was violated by United Methodist Homes’ alleged failure to properly record and report the claimant’s injuries. At the time of her compensable injury on December 2, 1989,1 the statute required each employer to keep a record of employees’ injuries that resulted in a day or more of incapacity, and to send to the chairman of this Commission the reports prescribed by his rules. The claimant argued that she reported her injuries to the director of nurses on January 10, 1990, advising her that she had suffered a pinched elbow nerve, and that said director misreported her injuries, warranting fines and punishment under § 31-288 C.G.S. (which prescribes fines for willful failure to comply with the provisions of the Workers’ Compensation Act). She also claimed that the First Report of Injury was not filed with this Commission, and that her employer’s failure to correct it caused a “hazardous condition.”

The trial commissioner was uncertain as to how the claimant was harmed by the filing of this FRI, as her claim has been accepted and discussed at many hearings over the last 4 (now six) years. She noted that the FRI made reference to a pinched elbow nerve, as well as elbow pain and minor contusions on the claimant’s left side and ankle, and that the insurer received a copy of that report. She also found that the claimant’s recollection and credibility were called into question with respect to what was injured and reported, what alleged willful misreporting was done by the employer, and what benefits this had to the employer. She ruled that the claimant’s claim should be dismissed, as § 31-316 does not create a penalty for noncompliance, nor does it offer a remedy to the claimant on that ground. Further, the claimant had not proven noncompliance with § 31-316. The claimant appealed that decision.

Subsequently, the Respondents filed two Motions to Dismiss this appeal. The first, filed on July 26, 1996, alleges that the claimant failed to file a timely brief. The second, filed on August 30, 1996, states that the claimant failed to file a timely Motion to Correct. Oral argument on this matter was postponed twice at the claimant’s request, first from September 20, 1996 to January 10, 1997, and again to March 14, 1997. A third request to postpone oral argument was denied, as was a request to reconsider this denial. The claimant did not appear at oral argument, and did not file a brief or Reasons of Appeal. As the Finding and Dismissal is dated October 17, 1995, and the claimant’s petition for review was filed on November 7, 1995, it also appears that her appeal may be late under § 31-301(a) C.G.S., which would divest this board of jurisdiction to consider it at all. (This issue was not raised by either party.)

Although this board attempts to give great leniency to pro se claimants regarding technical violations of the rules of the Compensation Review Board, see Falcone v. United Parcel Service, 3209 CRB-3-95-11 (decided Feb. 11, 1997), there is a limit to how far we can go. In this case, we do not know why the claimant is appealing or what her legal arguments are in support of her case, and she did not attend oral argument to explain these matters, even though it had already been postponed twice at her request. Further, we may not even have jurisdiction to consider her appeal because it was not filed within ten days of the date of the trial commissioner’s decision. We have no choice but to grant the respondents’ Motions to Dismiss, as the claimant has not prosecuted her appeal with due diligence pursuant to Practice Book § 4184A.

Turning to the claimant’s second appeal, we observe that the trial commissioner was requested to reopen the May 24, 1993 Finding and Dismissal awarding the claimant temporary total disability and permanent partial disability benefits but denying benefits pursuant to §§ 31-308(a), 31-308a, 31-312 and 31-313 C.G.S. The claimant wanted to introduce additional evidence. The commissioner noted that the claimant alleged changed conditions pursuant to § 31-315 C.G.S., but failed to meet her burden of proof on that issue at the formal hearing, as she raised no new evidence, nor did she establish that her condition had changed since the award was issued. Thus, the trier denied her Motion to Reopen, and the claimant appealed her decision. This appeal was timely filed.

The respondents filed a Motion to Dismiss this appeal on August 29, 1996. Again, the claimant requested two postponements of oral argument on this matter, which were granted, and requested a third postponement, which was denied. Despite having a request for an extension of time to file a brief granted, the claimant has not done so, nor has she filed Reasons for Appeal or a Motion to Correct. Consequently, we have no basis upon which to review her claim, as we have no way of anticipating her legal arguments without some sort of supporting documents. We have no choice but to dismiss this appeal as well for failure to prosecute diligently pursuant to Practice Book § 4184A.

Commissioners John A. Mastropietro and Stephen B. Delaney concur.

1 The facts of this case have been detailed in prior opinions by this board concerning matters arising out of this injury. See Ayres v. United Methodist Homes of Connecticut, 14 Conn. Workers’ Comp. Rev. Op. 220, 1743 CRB-4-93-6 (Aug. 7, 1995) (ruling on Motion to Submit Additional Evidence); 14 Conn. Workers’ Comp. Rev. Op. 228, 1743 CRB-4-93-6 (Aug. 10, 1995) (Ruling on Motion to Submit Additional Evidence). BACK TO TEXT

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