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Gyadu v. D’Addario Industries

CASE NO. 3617 CRB-05-97-04

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 8, 2000

BENJAMIN GYADU

CLAIMANT-APPELLANT

v.

D’ADDARIO INDUSTRIES

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se at oral argument.

The respondents were represented by Richard Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the June 15, 1999 Dismissal Order Upon Remand From Appellate Court was heard September 10, 1999 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, Stephen B. Delaney and Ernie R. Walker.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The pro se claimant has petitioned for review from the June 15, 1999 Dismissal Order Upon Remand From the Appellate Court.1 He argues on appeal that the Compensation Review Board erred by dismissing his appeal because the Commissioner acting for the Fifth District did not have subject matter jurisdiction to issue the April 8, 1997 Finding and Award due to a “conflict of interest.” (Claimant’s Brief at p. 10). The claimant further argues that the April 8, 1997 Finding and Award is “void” because it deprived him of constitutional rights. (Claimant’s Brief at p. 7-10).

A brief procedural history is in order. The claimant filed an appeal from the April 8, 1997 Finding and Award of the Commissioner acting for the Fifth District, and that appeal was dismissed as a late appeal by a decision issued on October 9, 1997. See Gyadu v. D’Addario Industries, 3617 CRB-5-97-4 (Oct. 9, 1997). Pursuant to an appeal by the claimant, the Appellate Court issued Gyadu v. D’Addario Industries, Inc., 53 Conn. App. 179 (May 11, 1999). In that decision, the court remanded the case to the board because the board had not made a factual determination as to the date that the trial commissioner’s decision had been mailed to the parties.

Upon remand from the Appellate Court, on June 15, 1999 the Compensation Review Board issued a Dismissal Order Upon Remand From the Appellate Court. See Gyadu v. D’Addario Industries, 3617 CRB-5-97-4 (June 15, 1999). In that dismissal, the board stated as follows:

The record indicates that the April 8, 1997 Finding and Award of the Commissioner acting for the Fifth District was properly mailed to all parties on that date. Specifically, a signed certification in the file indicates that on April 8, 1997 a copy of the Finding and Award “was mailed certified return receipt requested to all parties of record.” Moreover, a copy of the return receipt in the file indicates that the delivery date to the claimant was April 10, 1997. The claimant’s appeal was filed on April 24, 1997.
Gyadu v. D’Addario Industries, 3617 CRB-5-97-4 (June 15, 1999).

Accordingly, the claimant’s petition for review was dismissed as it was not filed within the time limit prescribed by § 31-301(a) C.G.S., which 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 . . . .” (Emphasis added).

We have consistently ruled that the appealing party must file its appeal within the prescribed time period in order for this board to have subject matter jurisdiction over the appeal. Corona v. Uniroyal Chemical, Inc., 9 Conn. Workers’ Comp. Rev. Op. 105, 987 CRD-5-90-3 (March 13, 1991) (dismissing appeal to this board filed on the eleventh day following trial commissioner’s decision); Famiglietti v. Dossert Corporation, 8 Conn. Workers’ Comp. Rev. Op. 65, 804 CRD-5-88-12 (April 17, 1990); Johnston v. ARA Services Inc., 7 Conn. Workers’ Comp. Rev. Op. 19, 20, 765 CRD-7-88-8 (June 29, 1989). Our Supreme Court has held that “the ten day appeal period of § 31-301(a) is tolled when the aggrieved party establishes that, through no fault of his own, he did not receive notice of the commissioner’s decision within ten days of the date that it was sent.” Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 590-91 (1999).

In support of his appeal, the claimant does not dispute that on April 8, 1997, a copy of the April 8, 1997 Finding and Award was mailed certified return receipt requested to all parties of record. Moreover, the claimant does not dispute that a copy of the return receipt in the file indicates that the delivery date to the claimant was April 10, 1997. Furthermore, the claimant does not dispute that his appeal was filed on April 24, 1997. Accordingly, it is not disputed that the claimant’s petition for review was not filed within the time limits required by § 31-301(a).

The claimant’s petition for review was not filed within the time limits required by § 31-301(a) and it is thus dismissed as untimely.

The claimant’s appeal is dismissed.

Commissioners Stephen B. Delaney and Ernie R. Walker concur.

1 That decision was issued without oral argument by the then Commission Chairman, Jesse M. Frankl, on behalf of the Board, and subsequently this appeal was scheduled before a three member panel of the Compensation Review Board to allow the claimant to present oral argument. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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