CASE NO. 3407 CRB-08-96-08
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 21, 2000
HENRY B. KUDLACZ
LINDBERG HEAT TREATING CO.
CRAWFORD & CO.
UNITED PARCEL SERVICE, INC.
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by Jacek Smigelski, Esq., Smigelski & Mills, L.L.C., 122 Main Street, New Britain, CT 06051-0875.
The respondents Lindberg Heat Treating Co. and Crawford & Co. were represented by Richard S. Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.
The respondents United Parcel Service and Liberty Mutual Insurance Co. were represented by Nicone Gordon, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.
As directed by the Supreme Court of this State in Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999), an evidentiary hearing concerning the claimant’s receipt of notice of the August 8, 1996 Findings and Facts of Dismissal of Claim by the Commissioner acting for the Eighth District was conducted on January 21, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. Like the recent cases of Schreck v. Stamford, 3322 CRB-7-96-4 (July 21, 2000), and Kulig v. Crown Supermarket, 3335 CRB-6-96-5 (July 21, 2000) which were also decided today, the present case stands in an unusual posture for an appellate matter, and requires us to deviate from the format this board normally uses in hearing argument and structuring its opinions. The relevant history is as follows. The claimant originally petitioned for review from an August 8, 1996 decision of the Commissioner acting for the Eighth District, where the trier dismissed his claim that he suffered compensable injuries while working for both of the respondent employers. His appeal was filed on Wednesday, August 21, 1996, thirteen days after the trial commissioner’s decision was issued via certified mail to all parties. The respondent Lindberg Heat Treating Co. and its insurer moved to dismiss the claimant’s petition for review for tardiness, as § 31-301(a) limits the appeal period of a workers’ compensation decision to “any time within ten days after entry of an award by the commissioner.”
By the terms of § 31-301(a), the claimant’s appeal would have been due on Monday, August 19, 1996. The claimant’s counsel explained that he did not receive any sort of notice of the trier’s decision until August 20, 1996. We nonetheless concluded that, pursuant to Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994), we lacked subject matter jurisdiction to consider the claimant’s appeal, as its timeliness hinged not on the date notice was received by the claimant, but on “the date meaningful notice of the trier’s decision is sent by this Commission.” (Emphasis in original.) Kudlacz v. Lindberg Heat Treating Co., 16 Conn. Workers’ Comp. Rev. Op. 214, 215, 3407 CRB-8-96-8 (June 9, 1997). “Even if we wanted to show leniency in this situation, we could not.” Id. In a 2-1 decision (Spear, J., dissenting), our ruling was affirmed by the Appellate Court, which declined to make an exception for cases in which the aggrieved party could prove that it did not receive notice of the commissioner’s decision until after the ten-day period had expired. Kudlacz, 49 Conn. App. 1, 5-6 (1998).
The claimant then petitioned the Supreme Court for certiorari, which was granted. 247 Conn. 909 (1998). The Court proceeded to overturn the decisions of the lower courts, citing fundamental rights to procedural due process. “We previously have eschewed a literal interpretation of the ten-day limitation period of § 31-301(a), . . . concluding that the legislature ‘undoubtedly . . . intended this provision to mean ten days after notice to the party of the entry of such finding; otherwise, in the event of the failure of the commissioner to notify the party of his finding and award within the ten-day period, the taking of the appeal would be fruitless.’” (Emphasis added by Kudlacz Court.) Kudlacz, 250 Conn. 581, 587-88 (1999), quoting Murphy v. Elms Hotel, 104 Conn. 351, 352 (1926). The Court reached a comparable conclusion here. “To bar an appeal by a party who, through no fault of his own, has not received notice of the commissioner’s adverse decision, would be inconsistent with the right to appellate review expressly granted to an aggrieved party under § 31-301(a).” Kudlacz, supra, 589. “In light of the significant interests at stake, our workers’ compensation system must be prepared to bear whatever slight burden may result from the need to resolve the unusual case in which a claim of lack of notice is raised.” Id., 590. The case was thus remanded to this board so that the claimant could be afforded the opportunity to show that, through no fault of his own, he did not receive notice of the trier 2’s decision until August 20, 1996 (as asserted), and that he filed his appeal within ten days of that date.
In most appeals, this board is presented with the decision of a trial commissioner for review, and it is with a deferential eye that we inspect the factual findings of the trial commissioner. See, e.g., Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). “In such cases the [board] will not retry the facts or hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusion reached.” Admin. Reg. § 31-301-8. The issue currently before this board does not fit that traditional mold, however, for there are no factual findings for us to review. In this case, and in two other cases in which a similar issue is currently pending,1 we are instead charged with the responsibility to determine the date that the claimant (or his counsel) received notice of the trial commissioner’s decision.
Accordingly, the January 21, 2000 proceeding before this panel was conducted on the record, and the standard argument-response-rebuttal format of this forum was adapted to facilitate the introduction of evidence.2 Each party was given the opportunity to submit relevant documentation into the record, and two witnesses were sworn in: the claimant’s attorney, Jacek Smigelski, and Darlene Taradeina, a paralegal who is employed by Attorney Smigelski. This board now makes the following factual findings, based on our assessment of the testimony, the documents entered into evidence by the parties, and those documents that were administratively noticed by the panel:
1. Copies of the August 8, 1996 Findings of Facts and Dismissal of Claim were sent that same day via certified mail, return receipt requested, to three separate addresses: Jacek Smigelski, Esq., P. O. Box 875, New Britain, CT 06050; Richard Bartlett, Esq., 281 Hartford Tpke., Vernon, CT, 06066; and Debra Dee, Esq., P. O. Box 695, Glastonbury, CT 06033. This is evident from the Certified Mail Receipts and Domestic Return Receipts (“green cards”) attached to the signed original copy of the trier’s decision in the record, as well as the affidavit of Krista Rue, a paralegal employed by this Commission.
2. At the time the decision was mailed, Attorney Smigelski’s business address was P. O. Box 875, New Britain, CT 06050.
3. The hand-printed dates on the green cards indicate that Attorney Bartlett (representing Lindberg Heat Treating Co. and its insurer, Crawford & Co.) received his copy of the decision on Friday, August 9, 1996, and that Attorney Dee (representing United Parcel Service, Inc., and its insurer, Liberty Mutual) received her copy of the decision on Wednesday, August 14, 1996. There is no hand-printed date on the green card for Attorney Smigelski’s copy, although Darlene Taradeina, the paralegal who works for Attorney Smigelski, testified that the signature on the card was hers.
4. The date stamps on said cards indicate that this Commission received the return receipt from Attorney Bartlett’s copy on Monday, August 12, 1996, and Attorney Dee’s copy on Thursday, August 15, 1996. Each of these dates is one business day after delivery of the decision was noted in pen by the postal carrier. The date stamped by the Eighth District office on Attorney Smigelski’s green card reads Thursday, August 22, 1996.
5. The claimant’s petition for review was filed by Attorney Smigelski on Wednesday, August 21, 1996 at the Eighth District office. He had also faxed a copy of the appeal to that office on the previous day, August 20, 1996.
6. Attorney Smigelski testified that he appeared at a hearing in the New Britain District Office on either Monday, August 19 or Tuesday, August 20, where he happened to encounter Attorney Dee. When he asked her what was going on with the instant case, she told him that she had received a decision, prompting him to instruct his paralegal to inquire about the ruling.
7. Darlene Taradeina testified that it was her practice to pick up the mail at the post office box at approximately 8:00 A.M. on each business day, and to deliver it to her employer. She did not learn of the ruling in the instant case until Attorney Smigelski requested that she call this Commission to find out where the Commissioner’s decision was.
8. In response to her phone call, a Commission employee at the Middletown District office faxed her a copy of the trier’s decision, which she immediately gave to Attorney Smigelski. This occurred on the morning of August 20, 1996. See Claimant’s Exhibit A.
9. Subsequently, Ms. Taradeina obtained from the post office the copy of the trier’s decision that had been sent to the claimant via certified mail on August 8, 1996. Based on the date of the fax, Ms. Taradeina’s custom of picking up the mail before work every morning, and the date on which the Eighth District office received the return receipt from the certified letter containing the trier’s decision, we find that counsel most likely received said decision on the morning of August 21, 1996.
10. The absence of a handwritten notation on the green card indicating the date of delivery does not establish a negative inference against the claimant. The Postal Operations Manual specifies in § 812.32(d) that it is the responsibility of the clearing clerk—a postal department employee—to ensure that all return receipts are properly signed and that the date of delivery has been entered. The Postal Operations Manual is part of the official body of regulations that governs the United States Postal Service, as per 39 C.F.R. § 211.2. The version of said manual entered into evidence by the respondents (see Exhibit 1) is dated August 1, 1996, and is clearly germane to the postal procedures at issue here.
11. Under § 812.26 of the Postal Operations Manual, it is also the responsibility of the carrier to leave a Form 3849 notice of arrival in the post office box of the intended recipient. There is no evidence to suggest that such a notice was properly deposited in the post office box of the claimant’s counsel.
12. Shortly after this incident occurred, Attorney Smigelski discontinued the use of a post office box, as it had become apparent that delays in the delivery of mail could jeopardize the rights of his clients.
13. We find the testimony of both Attorney Smigelski and Ms. Taradeina to be credible. There is no evidence that the actions or omissions of either caused the tardy delivery of the trial commissioner’s decision.
14. Based on the subordinate facts, we find that the claimant first received notice of the trier’s decision on August 20, 1996, when a Commission employee faxed a copy of the ruling to Attorney Smigelski’s office.
15. The claimant’s petition for review was filed on August 21, 1996, one day after actual notice of the commissioner’s decision was first received.
The respondents argue that the claimant should have offered the testimony of a postal employee in order to establish the actual date of delivery, as he carried the burden of proving the date that the certified letter was delivered. This is not precisely true. As per the Supreme Court’s directive, the claimant’s burden was to establish that, through no fault of his own, he did not receive notice of the trier’s decision within ten days of the date it was sent. While one could go a long way toward accomplishing this task by demonstrating that delivery was not even attempted until after the ten-day period had run, the real focus of the Court’s decision was on two things: the claimant’s subjective failure to receive notice, and the character of his (or his counsel’s) conduct in doing so.
We held in Kulig, supra, that it would be improper to place the claimant in a position of having to prove not only that she was not affirmatively responsible for the belated delivery, but that the post office was somehow culpable for the delay. “As a practical matter, it would be nearly impossible for the claimant to accomplish this task several years after the fact, as the post office only keeps certified mailing records for two years. See Postal Operations Manual, § 812.24 (Aug. 1, 1996 Revision). . . . In our view, the due process concerns of the Supreme Court are best addressed in this case by requiring the claimant to prove only that she deserves no blame for failing to receive timely notice of the trier’s decision.” Id. The same rationale is applicable here. We would undermine the practical effect of our Supreme Court’s directive by assigning the claimant the heavy burden of demonstrating that a postal employee caused the delay, as we would be placing a party in the untenable position of accounting for the behavior of others. Where the issue is “the failure of notice beyond [a] party’s control;” Kudlacz, supra, 588; said party can only be expected to account for those activities over which it had control—namely, its own course of action during the appeal period.
As we have found the testimony of the claimant’s counsel to be credible, we hold that the claimant has successfully demonstrated a lack of fault for his failure to receive notice of the trier’s decision within ten days of the date it was sent. He in fact received such notice on August 20, 1996, which means that the filing of his petition for review on the next day was a timely filing. Thus, the appeal is hereby reinstated. As the claimant has not yet filed Reasons for Appeal or a brief addressing the merits of this case, we cannot proceed to schedule oral argument. Instead, we will grant the claimant twenty days from the date of this decision to file his Reasons for Appeal. Subsequent to their receipt, a briefing schedule can be prepared, and oral argument placed on the calendar.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.
1 The Court also remanded the cases of Schreck v. Stamford, 250 Conn. 592 (1999), and Kulig v. Crown Supermarket, 250 Conn. 603 (1999), to afford the respective claimants/plaintiffs the chance to establish that, through no fault of their own, they failed to receive notification of the relevant trial commissioners’ decisions within the ten-day § 31-301(a) appeal period. In each case, success would entitle the claimant to reinstate his or her appeal. As noted at the outset of this opinion, this board today issued decisions in both of those cases. BACK TO TEXT
2 On December 9, 1999, the respondent Lindberg Heat Treating Co. and its insurer filed a Motion to Dismiss the claimant’s appeal on the ground that he failed to file an Appellant’s brief. The claimant objected that, the issue before this board being mainly evidentiary, he did not intend to file a brief. Although this board has the discretion to dismiss an appellant’s petition for review for failing to file a timely brief pursuant to Practice Book § 85-1; see, e.g., Mendoza v. Raposo, 15 Conn. Workers’ Comp. Rev. Op. 155, 157-58, 2172 CRB-7-94-10 (Jan. 26, 1996); we agree that it would not be appropriate to do so in this case. Unlike the matters that routinely confront this board, the issue today is essentially factual, and we must make our decision based on the evidence presented by the parties. As such, the filing of an appellate brief would not likely provide this board or the respondents with vital information. We thus deny the Motion to Dismiss. We also note that, at oral argument, a December 9, 1999 Request for Change of Venue was withdrawn by the aforementioned movants when the claimant consented to allow into evidence a declaration and records from the United States Postal Service. See Respondents’ Exhibit 1. BACK TO TEXT