State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Chang v. Pizza Hut of America, Inc.

CASE NO. 4122 CRB-06-99-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 28, 2000

ALVA CHANG

CLAIMANT-APPELLEE

v.

PIZZA HUT OF AMERICA, INC.

EMPLOYER

and

AMERICAN MANUFACTURERS MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The pro se claimant was not represented at oral argument.

The respondents were represented by Tracy Green Cleary, Esq., 2750 Dixwell Avenue, P. O. Box 187289, Hamden, CT 06518.

The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

The parties agreed to waive oral argument before the board and have the scheduled issue before the board decided on the papers.

This ruling arises from a Petition for Review from the September 8, 1999 Finding and Award of the Commissioner acting for the Sixth District. A sua sponte motion to dismiss that appeal was considered on June 16, 2000 by a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

RULING ON SUA SPONTE MOTION TO DISMISS

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has filed a timely petition for review from the September 8, 1999 Finding and Award of the Commissioner acting for the Sixth District. The District Office received the appeal on September 16, 1999. One week later, the Fund filed a Motion for Extension of Time to File Reasons of Appeal, which are normally due within ten days of the date that the petition for review is filed. Admin. Reg. § 31-301-2. The Fund simultaneously filed a Motion for Extension of Time to File Motion to Correct. Both of these motions were granted. The Motion to Correct would be due within thirty days after the Fund received a copy of the transcript and exhibits, while the Reasons of Appeal were due by December 8, 1999 as per the Chairman’s ruling.

However, the Fund never filed a Motion to Correct, and its Reasons of Appeal were not submitted to this board until March 23, 2000. By that time, this board had requested that the Second Injury Fund show cause why its appeal should not be dismissed pursuant to Practice Book § 85-1 for failure to prosecute in a timely manner. This board is entitled to dismiss appeals which are not diligently pursued; Reynolds v. Atlantic Foods, 3676 CRB-7-97-9 (Oct. 20, 1998); and will not allow an appeal to indefinitely await prosecution absent a compelling cause for delay. Draughn v. Yale-New Haven Hospital, 4055 CRB-8-99-6 (Aug. 29, 2000). The failure of a party to file timely Reasons of Appeal renders that party’s appeal voidable by this agency. Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 697 (1987); Evans v. Shelton, 16 Conn. Workers’ Comp. Rev. Op. 155, 156, 3108 CRB-4-95-6 (May 2, 1997). An opposing party may move to dismiss the appeal on that ground under P.B. § 66-8 within ten days of the date that said ground arises; this board, meanwhile, may schedule a “show cause” hearing such as this one at any time under the more general rubric of “failure to prosecute with proper diligence.” See Tamarit v. Ottolini, 145 Conn. 586, 589 (1958) (court may, upon its own motion, dismiss appeal for failure of appellant to prosecute with due diligence).

The Second Injury Fund explains in its brief that it failed to file its Reasons of Appeal in a timely manner because (1) it never received an order granting its Motion for Extension of Time to File Reasons of Appeal, and (2) this case was handled by outside counsel at the trial level, and was assigned to the attorney of record “just in time” to file a timely petition for review and motions for extension of time. Counsel also urges that this appeal not be dismissed because the delayed Reasons of Appeal caused no prejudice to either appellee. Though we agree that the claimant was probably not prejudiced in any manner by said delay, we are less receptive to the notion that the respondents were not prejudiced “because the issue on appeal was obvious.” Even if that contention is essentially true, the Fund’s failure to file timely documents delayed the scheduling of this case for oral argument, and prevented the respondents from addressing any particular legal arguments raised by the Fund. Indeed, the proceedings on this motion to dismiss have themselves caused delay in the resolution of this appeal, during which period the Fund has allegedly refused to assume responsibility for the claimant’s injury. Respondents’ Brief, 4. We are also unimpressed with the Fund’s excuses for taking six months to file its Reasons of Appeal, as it would seem that little effort was made by counsel to follow up on the motions she had filed until this board took the initiative to demand a “show cause” hearing under P.B. § 85-1.

Still, this board does not prefer to dismiss appeals without considering their merits. As noted above, the Fund eventually did file its Reasons of Appeal, along with Amended Reasons of Appeal dated April 10, 2000. Though we are displeased at the Fund’s casual dismissal of any notion that opposing counsel and/or its clients might have been prejudiced by the delays it has caused, we do acknowledge that there does not appear to be a great degree of prejudice to the respondents’ defense of this case. Thus, we will refrain from dismissing the Fund’s appeal at this juncture. This matter should, however, be resolved as quickly as possible, which means that oral argument on the merits of the appeal must be scheduled forthwith, and the parties—particularly the appellant—should endeavor to fastidiously comply with all further filing deadlines.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

Workers’ Compensation Commission

Page last revised: January 4, 2005

Page URL: http://wcc.state.ct.us/crb/2000/4122crb.htm

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