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Sanders v. GAE Services

CASE NO. 3481 CRB-05-96-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 29, 1998

EDWARD SANDERS

CLAIMANT-APPELLEE

v.

GAE SERVICES

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Kevin J. Daly, Esq., Law Offices of John Haymond, 999 Asylum Ave., Hartford, CT 06105.

The respondents were represented by Erik Roberts, Esq., Law Offices of Nancy Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

The Second Injury Fund was represented by Kenneth Kennedy, Jr., Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 18, 1996 Finding and Award of Dismissal of the Commissioner acting for the Fifth District was heard October 17, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the November 18, 1986 Finding and Award of Dismissal of the Commissioner acting for the Fifth District. They argue on appeal that the trier erroneously interpreted Public Act 95-277 § 3(e) as requiring the dismissal of their claim for a transfer of liability to the Second Injury Fund. We affirm the trial commissioner’s decision.

The claimant was injured on July 14, 1993, and was compensated for a 15% permanent partial disability of the back. On April 20, 1995, the respondents sent notice to the Second Injury Fund of their intent to transfer liability for this injury pursuant to § 31-349 C.G.S. Receipt was acknowledged by the Fund on May 9, 1995. Pursuant to P.A. 95-277 § 3(e), employers and insurers who wished to further pursue transfer of claims to the Fund that had been made prior to July 1, 1995, were required to notify the Fund’s custodian of that intent by certified mail prior to October 1, 1995. The respondent insurer sent a “re-notice” dated September 26, 1995 to the Fund, which was received on Monday, October 2, 1995. The commissioner found that, because the notice was not received before October 1, 1995, the respondents’ re-notification was untimely. He therefore dismissed their claim for transfer. The respondents have appealed.

Public Act 95-277 § 3(e) is now codified at § 31-349(e). It provides, in relevant part, that “[a]ll claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995, of its intention to pursue transfer pursuant to the provisions of this section.” The respondents argue that the last date for performance under this statute was Saturday, September 30, 1995, a day when the offices of the Second Injury Fund were not required to be open. They contend that notices received on Monday, October 2, 1995, which was the next business day, should be considered timely.

According to § 4010 of the Connecticut Practice Book’s Rules of Appellate Procedure, when the last day of any time limitation for filing a paper under the rules falls on a day when the office of the trial court or the appellate clerk is not required to be open, the paper may be filed on the next day when the office is open for business. Section 31-301(e) makes the procedure in appealing a commissioner’s decision the same as that used in appealing a Superior Court decision to the Supreme Court (or, inferably, the Appellate Court). See, e.g., Zito v. General Dynamics Corporation, 3478 CRB-8-96-11 (decided July 9, 1997). Thus, we have invoked this Practice Book rule where a § 31-301(a) petition for review was filed with the Workers’ Compensation Commission one day late because the tenth day from the date of the decision fell on a Sunday, when the Commission’s offices were closed. Noga v. Colin Service Systems, Inc., 3361 CRB-6-96-6 (decided Sept. 16, 1997).

The appellants cite Practice Book § 4010 in their brief, along with Practice Book § 405 (concerning filings to the clerk of the court), § 12-39a and § 12-169 C.G.S. (tax filings), and § 1-21(b) C.G.S. (notices to agencies regarding public meetings). All of these provisions are examples of specific legislative exceptions that prevent a notice deadline from falling on a weekend or holiday. However, none of these statutes applies to the instant case. Our research has uncovered no statutory exception that authorizes this board to construe § 31-349(e) in the same manner we do § 31-301(a).

Indeed, one major feature of statutes such as Practice Book § 4010 and § 12-39a C.G.S. is that they concern general notice periods, where any date on the calendar could be the due date for the filing of a document. Section 31-349(e), on the other hand, specifically recites the date of October 1, 1995, which the legislature presumably recognized to be a Sunday when it passed the statute. By requiring a party to notify the custodian of its intent to pursue transfer prior to October 1, 1995, the legislature was in fact saying that the custodian of the Second Injury Fund had to be made known of said intent before October 1, 1995. See Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 238-39 (1947) (“notify” means to successfully make something known). As the Fund pointed out in its brief, the appellants have made no showing that notice could not have been given to the Fund by certified mail on Saturday, September 30, 1995. Our Supreme Court has held that “legal holiday” statutes extending the time limit for giving notice do not apply to Saturdays, as they are not legal holidays in and of themselves. Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 5 (1975) (secretary of Public Utilities Commission could have been served with notice of appeal on Saturday, January 18, 1975), distinguishingLamberti v. Stamford 131 Conn. 396 (1944).

The general rule regarding appeals to courts from administrative agencies is that they exist only under statutory authority, and can only be pursued by strictly complying with the statutory provisions that create those rights. Norwich Land Co., supra, 6. “Time is not merely a procedural limitation but is an essential part of the remedy.” Id. In that vein, our Appellate Court has dismissed at least two appeals by plaintiffs from administrative decisions because the appeals were filed one day after the thirty-day appeal period expired. In both cases, the appeals were filed on a Monday. Hanson v. Department of Income Maintenance, 10 Conn. App. 14 (1987); Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643 (1985). “The time limitations in the Uniform Administrative Procedure Act . . . are jurisdictional in nature and, if not complied with, render the appeal subject to dismissal.” Hanson, supra, 16. “Where the last day to appeal fell on Sunday, . . . service of process on the following day did not satisfy the statutory requirements.” Atkins, supra, 646.

Cases involving transfers of liability to the Second Injury Fund are similar insofar as our courts have been very strict regarding the breadth of the statutes that assign liability to the Fund. The general rule has always been that the statutory notice periods pertaining to Second Injury Fund transfers are substantively integral to § 31-349, and must be strictly construed. Davis v. Norwich, 232 Conn. 311, 322 (1995); Kiernan v. Roadway Express, 15 Conn. App. 625, 630 (1988). “[P]ayment of an award from a special fund such as the second injury and compensation assurance fund . . . should be made only in accordance with express statutory authority.” Civardi v. Norwich, 231 Conn. 287, 294 (1994) (citations omitted). Moreover, our Supreme Court recently explained that P.A. 95-277 (of which the provision in question here is a part) was adopted in the face of serious financial problems at the Fund, and was intended to reduce its financial burden. As such, that legislation must be construed in a manner consistent with that goal. Coley v. Camden Associates, Inc., 243 Conn. 311, 319-20 (1997). It would be inconsistent with decisions such as Davis, Coley, and Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993), for this board to read § 31-349(e) as providing an extra day within which notice could have been provided to the Second Injury Fund.

The language of § 31-349(e) is clear: notice had to be provided by certified mail prior to October 1, 1995. The statute is date-specific, and lacks any ambiguity. The appellants also did not introduce any proof that notice could not have been delivered on September 30, 1995. As such, we must affirm the trier’s decision to dismiss this claim.

Commissioner John A. Mastropietro concurs.

JAMES J. METRO, COMMISSIONER, DISSENTING. I would sustain the respondents’ appeal. The offices of most state agencies are closed on Saturdays and Sundays. I am not persuaded that the reasoning behind Practice Book § 4010 and cases such as Lamberti v. Stamford, 131 Conn. 396 (1944), is inapplicable here. The Respondents had properly provided timely notice of this claim to the Second Injury Fund on April 20, 1995, but were required to re-notify the Fund by P.A. 95-277 § 3(e). In fact, the Respondents did re-notify the Second Injury Fund by certified mail on September 26, 1995. I am of the opinion that, by posting the re-notification on September 26, 1995, some five days prior to October 1, 1995, they in fact complied with the statutory mandate. The legislature dictated that the re-notice be sent to the Fund by certified mail. This the respondents did, and it seems patently unfair to require them to accept the denial of their transfer request because of the unpredictability of the delivery of certified mail by the United States Post Office.

The statute does not explicitly require that the Second Injury Fund actually receive the re-notification of transfer by October 1, 1995. I read the statute to state that the re-notice must be mailed by certified mail prior to October 1, 1995. Otherwise, a respondent insurer could mail the re-notice by certified mail weeks or even months prior to October 1, 1995, but if the same were not delivered to the Second Injury Fund until October 2, 1995, then all would be lost for the respondent. Thus, I would reverse the Finding rendered below.

Workers’ Compensation Commission

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