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Zito v. General Dynamics Corp. Electric Boat Division et al.

CASE NO. 3478 CRB-08-96-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 9, 1997

BERTHA ZITO (Dep. Widow of)

MELCHIORRE ZITO (Deceased)

CLAIMANT-APPELLEE

vs.

GENERAL DYNAMICS CORPORATION ELECTRIC BOAT DIVISION

EMPLOYER

CIGNA PROPERTY & CASUALTY

TRAVELERS INSURANCE COMPANY

INSURER

and

BECHETEL

EMPLOYER

INDUSTRIAL INDEMNITY

INSURER

and

TURNER CONSTRUCTION

EMPLOYER

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Nathan Julian Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.

The respondents, General Dynamics Corporation/Cigna Property & Casualty were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The respondents, General Dynamics Corporation/Electric Boat and Travelers Insurance Company were represented by Christine Harrigan, Esq., Joseph Passaretti, Jr., Esq., and Kenneth DeLorenzo, Esq., Law Offices of Christine Harrigan, 185 Asylum Street, City Place, Hartford, CT 06103.

The respondents, Bechetal and Industrial Indemnity were represented by Robert Montstream, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033. However no one appeared for Bechetal and Industrial Indemnity at oral argument.

The respondents Turner Construction and Liberty Mutual were represented by Erik Roberts, Esq., Law Offices of Nancy Rosenbaum, 655 Winding Brook Drive, P.O. Box 695, Glastonbury, CT 06033. However no one appeared for Turner Construction and Liberty Mutual at oral argument.

The Second Injury Fund was represented by Assistant Attorneys General Kenneth Kennedy, Jr., Esq., Michael Belzer, Esq., Ernie Walker, Esq., and Matthew Beizer, Esq., P.O. Box 120, 55 Elm Street, Hartford, CT 06141.

This Petition For Review from the Commissioner acting for the Eighth District’s November 12, 1996 Finding and Award was heard June 27, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

RULING RE: MOTION TO DISMISS

JESSE M. FRANKL, CHAIRMAN. The respondents-appellees, General Dynamics Corporation/ CIGNA, filed a Motion To Dismiss the respondent-appellant, Second Injury Fund’s appeal in the above named matter. The respondents-appellees’ Motion to Dismiss was based on their assertion that the Second Injury Fund’s appeal was untimely pursuant to § 31-301(a). Sec. 31-301(a) mandates that an appellant’s Petition For Review be filed within 10 days of the decision from which an appeal is taken.1

In the instant case the respondents-appellees, contended that the Second Injury Fund’s November 22, 1996 filing of its Petition For Review from the November 12, 1996 Finding and Award was untimely. In support of its Motion To Dismiss pursuant to § 31-301(a), the respondents-appellees, argued that the tenth day should be calculated as occurring on November 21, 1996. The respondents-appellees contended that as the Fund’s appeal was filed November 22, 1997, it was one day late.

The respondents-appellees’ Motion To Dismiss was heard at oral argument held June 27, 1997. The Fund was given an opportunity to respond. At oral argument some of the panel members were persuaded by the respondent-appellees’ logic. Thus, in a bench ruling we announced that we were granting the respondents-appellees’ Motion to Dismiss. However, one of our panel members dissented from our bench ruling. Upon further reflection we believe those of us who favored granting the Motion To Dismiss the Fund’s appeal based on the respondents-appellees’ argument may have acted in haste. We therefore, dismiss the Fund’s appeal but on a different basis than that which was advanced by the respondents-appellees.2

We believe that if we let our earlier basis for dismissal stand we would endorse a method of calculating the expiration of § 31-301(a)’s time limits which would run afoul of Practice Book § 4010. The dismissal of the Fund’s appeal still stands but the grounds and the reasoning supporting the dismissal are set out below.

The instant matter was scheduled to be heard before the June 27, 1997 Compensation Review Board. Notice of that date of oral argument was forwarded to the parties on or about March 24, 1997. The notice of oral argument indicated that the issue to be considered by the panel was for the appellant to show cause why the appeal should not be dismissed pursuant to Practice Book § 4184A, i.e., failure to prosecute with due diligence.3 Our review of the Fund’s filings in this matter reflect that at the time notice of oral argument was sent to the Fund, no Reasons For Appeal nor Motion To Correct were filed by the appellant. It also appears that the transcripts in this matter were all available to the appellant prior to the trial Commissioner’s issuing of his decision.4

We note that the appellant in its Response To CRB Motion defended its failure to file on the basis of the unavailability of certain aspects of the record, we fail to see what portions of the record were not available to the Fund prior to the scheduling of oral argument. Therefore, we exercise our discretionary right to dismiss the Fund’s appeal.

Thus, we dismiss the Fund’s appeal albeit on different grounds than were announced in our bench ruling, but a basis upon which the Fund had notice.

Commissioners James J. Metro and John A. Mastropietro concur.

1 Sec. 31-301(a) provides in pertinent part:

At any time within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of Sec. 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties. BACK TO TEXT

2 Prac. Book § 4010 provides:

In determining the last day for filing any papers, the last day shall, and the first day shall not, be counted. Time shall be counted by calendar, not working, days. When the last day of any limitation of time for filing any paper under these rules or an order of the court falls on a day when the office of the trial court or of the appellate clerk is not required to be open, the paper may be filed on the next day when such office is required so to be open. BACK TO TEXT

3 Practice Book § 4184A provides:

If a party shall fail to prosecute an appeal with proper diligence, the court may dismiss the appeal with costs. If a party shall fail to defend against an appeal with proper diligence, the court may set aside in whole or in part the judgment under attack, with costs, and direct the entry of an appropriate final judgment by the trial court against the party guilty of the failure. If that party is a defendant in the action, the directed judgment may be in the nature of a judgment by default for such amount as may, upon a hearing in damages, be found to be due. If that party is a plaintiff in the action, the directed judgment may be one dismissing the action as to that plaintiff, and the judgment shall operate as an adjudication upon the merits. The statutory provisions regarding the opening of judgments of nonsuit and by default shall not apply to a judgment directed under the provisions of this rule. BACK TO TEXT

4 It is our understanding that the transcripts were forwarded to the Second Injury Fund’s counsel on Sept. 22, 1996. We understand that the Fund also defends its arguably untimely action with an assertion that it sought copies of the exhibits which were not forwarded. The Fund also claims that it did not receive a response to its inquiry for a period of time. However, the Fund offers no assertion of a follow-up to its inquiry prior to the scheduling of oral argument. See, Second Injury Fund’s Response To CRB Motion filed April 9, 1997. None-the-less the Fund was free at any time through one of its representatives to secure copies of whatever exhibits it needed as it ultimately did. The record was available to the Fund. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: June 13, 2005

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