State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Garcia v. Joseph Tully d/b/a Reliable Landscaping Services

CASE NO. 4209 CRB-7-00-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 1, 2001

WALDEMAR GARCIA

CLAIMANT-APPELLEE

v.

JOSEPH TULLY d/b/a RELIABLE LANDSCAPING SERVICES

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was not represented at oral argument, as counsel elected to proceed on his brief. Notice sent to Joseph Tauber, Esq., 99 Prospect Street, Stamford, CT 06901.

The respondent employer was represented by William C. Bieluch, Jr., Esq., 989 Post Road, P. O. Box 11, Darien, CT 06820-0511.

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

These Petitions for Review from the February 25, 2000 Finding and Award of Compensation by the Commissioner acting for the Seventh District were heard August 25, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Leonard S. Paoletta and George A. Waldron.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer has filed a petition for review from the February 25, 2000 Finding and Award of Compensation by the Commissioner acting for the Seventh District. He contends on appeal that the trier erred by finding that the claimant was acting as his employee on the date of his alleged injury. There is also a question pending as to the timeliness of the instant appeal. We dismiss the respondent’s petition for review, and affirm the commissioner’s decision.

Initially, we must determine whether the instant appeal is timely, as this board lacks subject matter jurisdiction over late petitions for review. See Conaci v. Hartford Hospital, 36 Conn. App. 298, 303 (1994). Section 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.” Generally, the ten-day period begins running on the date that notice of the decision is sent to the parties. Kulig v. Crown Supermarket, 250 Conn. 603, 610 (1999). The only recognized exception to this time limit applies when an aggrieved party, through no fault of its own, has failed to receive notice of the commissioner’s decision within ten days of the date it was sent. Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999). In such cases, the party seeking to appeal is given ten days from the date it actually received notice to file its petition for review. Id., 591 n. 14.

The trier’s award is dated February 25, 2000, which was a Friday. According to a signed certification page appended to the award, a copy was sent via certified mail on that same date to each of the attorneys of record. The attached certified mail receipts state that the date of the mailings was February 25, 2000. The return receipts, or “green cards,” reflect that the claimant’s counsel received his copy of the award on Monday, February 28, 2000, as did the office of the Attorney General (representing the Second Injury Fund). The return receipt for the respondent’s counsel is date-stamped March 1, 2000 (a Wednesday), and the appellant’s counsel confirms that he first received a copy of the award on that date. The respondent’s initial petition for review was received by this Commission on Thursday, March 9, 2000, when it arrived at the office of the Seventh District. March 9, 2000 fell thirteen days after February 25, 2000.1 By law, therefore, the respondent’s appeal was filed in an untimely manner, as his counsel received notice of the decision several days before the ten-day appeal period expired on Monday, March 6, 2000, but did not file a petition for review by that date.

The appellant argues that the ten-day deadline should be extended here because this Commission did not follow proper statutory procedure in sending notice of the trier’s award to the parties. He cites § 4-180 C.G.S., which states, “The final decision [of an agency] shall be delivered promptly to each party or his authorized representative, personally or by United States mail, certified or registered, postage prepaid, return receipt requested.” This section is part of the codified Uniform Administrative Procedure Act found at § 4-166 C.G.S. et. seq. We note that § 31-321, a more specific statute found in the Workers’ Compensation Act, similarly requires notices of decision to be served “personally or by registered or certified mail . . . .” The appellant contends that these laws can only be satisfied if Commission employees carry such notices to an open postal facility under this statute so that a stamped receipt may be obtained upon mailing. He alleges that this did not happen here, as the envelope containing his copy of the decision was in fact placed in a postal box near the building, which means that “there is no guarantee that the decision was mailed and picked up on a Friday.” Brief, p. 5.

We are unpersuaded by this argument. First, both of the other parties to this case received copies of the decision on Monday, February 28, 2000, which strongly indicates that the post office mailed these certified letters no later than Saturday, February 26. No one disputes that the post office is normally open on Saturday mornings. A possible extension of the § 31-301(a) filing deadline by one day would be of no avail to the respondent, as his appeal was three days late. Second, we are unconvinced that a minor variation in the standard procedure of submitting a certified letter for mailing at the post office warrants a complete suspension of the § 31-301(a) statutory appeal period, absent a showing that notice was likely delayed as a result. Third, we fail to understand why the respondent could not have filed a petition for review within the first few days after receiving the unfavorable decision, while requesting additional time to file supplementary documents such as his Reasons of Appeal. We therefore hold that the instant appeal is late, and that this board accordingly lacks subject matter jurisdiction to adjudicate it.

We note that the respondent’s appellate argument also implicates the subject matter jurisdiction of this board, as he contends that the trier improperly found the claimant to be his employee on the date of his shoulder injury. Issues of subject matter jurisdiction may not be waived, of course, as the existence of facts sufficient to support the exercise of such jurisdiction by the trial commissioner is fundamental to her power to adjudicate the merits of a proceeding. Castro v. Viera, 207 Conn. 420, 434 (1988). Part of the trial commissioner’s duty in this case was thus to determine whether the facts established subject matter jurisdiction over the instant claim, which she was required to ascertain before addressing other aspects of the case. Id., 434-35.

As the finder of fact, the trier’s interpretations of evidentiary credibility must be given great deference on appeal. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The facts of this case leave little room for this board to invalidate the trier’s findings regarding the existence of an employment relationship. They are based on inferences she drew from the claimant’s testimony, and from signatures on gas receipts that the respondent introduced into evidence. Findings, ¶¶ 3-18. Even if the instant appeal had been timely filed, it is unlikely that we would have been in a position to declare the trier’s reliance on the claimant’s testimony improper as a matter of law by second-guessing her impression regarding the origin of the signature on the gas receipts. See, e.g., Gagliardi v. Raimondo Maintenance, L.L.C., 4012 CRB-1-99-4 (July 20, 2000) (trier alone decides whether testimony is inconsistent or unreliable). Given that the respondent’s appeal is late, we have even less ground upon which to question the accuracy of those findings.

The respondent’s appeal is hereby dismissed.

Commissioners Leonard S. Paoletta and George A. Waldron concur.

1 The respondent also petitioned for review from the trial commissionerís March 16, 2000 denial of his March 9, 2000 Motion to Correct, which appeal was filed at the Seventh District on March 24, 2000, only eight days subsequent to the contested ruling. However, the filing of a motion to correct does not serve to extend the initial appeal period; Couto-Radcliff v. Glen Hill Convalescent Center, 3576 CRB-7-97-3 (April 2, 1998); and it is clear that the respondent here was primarily aggrieved by the award itself. Therefore, the viability of the respondentís appeal turns on the timeliness of his initial petition for review. BACK TO TEXT

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