CASE NO. 4981 CRB-3-05-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 30, 2006
TILCON CONNECTICUT, INCORPORATED
LIBERTY MUTUAL INSURANCE GROUP
The claimant appeared pro se.
The respondents were represented by William C. Brown, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review from the July 19, 20051 Order of the Commissioner acting for the Fifth District was heard March 24, 2006 before a Compensation Review Board panel consisting of Commissioners Donald H. Doyle, Jr., Nancy E. Salerno and Ernie R. Walker.
DONALD H. DOYLE, JR., COMMISSIONER. In the instant appeal, the claimant appeals from an order of dismissal entered by the Commissioner acting for the Fifth District who dismissed the claim when the claimant failed to appear at a formal hearing. We are satisfied that the claimant did not receive actual notice of the hearing and are satisfied that the claimant preserved his appeal rights once he obtained notice of the dismissal. Accordingly, we remand this matter for a hearing on the merits.
The undisputed facts are as follows. The claimant, who is now proceeding pro se, suffered a compensable injury in 1997. There is presently an open issue as to whether temporary total disability benefits should be ordered for a period from April 20, 1997 to July 15, 1997, as well as whether the claimant should be awarded a mileage reimbursement and reimbursement for out of pocket prescription drug expenses. Pre-formal hearings failed to resolve this dispute, so the commissioner scheduled a formal hearing. The notices were sent out on June 14, 2005 for a hearing on July 19, 2005. The notice to the claimant was sent to his last known address and did not come back as undeliverable. On the date of the formal hearing counsel for the respondents appeared but the claimant did not. The commissioner placed a phone call to the claimant’s phone number, which was out of service. The respondents moved for a non-suit for failure to prosecute, which was granted without prejudice by the commissioner, “subject to reinstatement in accordance with the procedure in the Connecticut Practice Book.” This order was issued on July 19, 2005.
The claimant did receive a copy of the commissioner’s Order non-suiting his claim via registered mail. He filed a petition for review with the Commission appealing this order on July 29, 2005, which is within the statutory period under § 31-301(a) C.G.S. for filing an appeal to the Compensation Review Board. He did not file his reasons for appeal with the CRB until September 17, 2005 or his brief until November 17, 2005. He did not file a motion to reopen the commissioner’s Order with the Fifth District.
The respondents claim they did not receive the claimant’s appeal filings. They did not file a motion to dismiss the appeal and did not assert the claimant failed to comply with Practice Book Section 85-1 until they filed their brief on December 5, 2005.
At the outset, we must determine whether the filing of an appeal tolls the effect of the trial commissioner’s July 19, 2005 order non-suiting the claimant. We believe that it does. We must consider the remedial and humanitarian purposes of the Workers’ Compensation Act in this analysis. While issues of subject matter jurisdiction cannot be waived, this Commission has been reluctant to dismiss claims solely due to procedural missteps. The claimant is acting as a pro se litigant. As a result, we may anticipate some unfamiliarity with the terms of the Connecticut Practice Book. We also take notice that the respondents do not argue in their brief that claimant’s stay is ineffective, nor demonstrate any prejudice either from the filing of the appeal, or indeed, from having the non-suit reopened.
There is some similarity here with the circumstances in Prioli v. State/Connecticut State Library/Arts Commission, 3955 CRB-6-98-12 (January 13, 2000). In Prioli we held that filing a motion to open a judgment during the appeal period acted to toll the appeal period. “The policy behind this rule is sound. It prevents a party who has failed to file a timely appeal from circumventing the statutory appeal period by simply filing a motion to open, while at the same time recognizing the redundancy of requiring a party that seeks to reopen a decision to also file an appeal from the initial ruling before the motion to open has been decided.” We believe forcing a party to move to open a non-suit rather than appealing could be redundant as well, especially in the absence of prejudice to the other party. Therefore, although we believe the filing of a motion to open is the better mechanism to address this issue, we find it logical to equate the filing of an appeal as tolling the non-suit in the same fashion as filing a motion to open an order tolls the appeal period. See also Hicking v. State/Department of Correction, 4825 CRB-2-04-6 (July 14, 2005).
The respondents do argue in their brief that the claimant’s appeal should be dismissed due to his lack of diligence in pursuing the appeal. There is no demonstration of prejudice from the claimant’s procedural deficiencies. We therefore deny the respondents’ request to dismiss the appeal pursuant to Practice Book § 85-1. See Roussel v. Village Gate of Farmington, 4918 CRB-6-05-2 (February 28, 2006). “In the absence of any prejudice to the respondents, the board concludes that the filing of the motion to extend time successfully preserved the board’s jurisdiction over the appeal. To dismiss an appeal over the adequacy of papers filed during the statutory appeal period, in the absence of prejudice to the opposing party, would be an overly narrow construction inconsistent with the humanitarian and remedial purposes of the Workers’ Compensation Act.” Id.
In regards to the merits of the appeal, the claimant presents a credible argument that due to a series of serious illnesses in his family that he had left his residence for an extended period of time and allowed his telephone to go out of service. He also said that for a period of time the Postal Service did not forward his mail to him in a timely fashion. While the claimant’s actions were perhaps negligent in not keeping the Commission informed as to his home address, we do not after review find the claimant willfully failed to attend the July 19, 2005 hearing. We return to the remedial purposes of the Act which we believe are not advanced by dismissing the claim under these circumstances. Such a result would be inconsistent with the holding in Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 587-589 (1999), where the Supreme Court dealt with a failure of notice and agreed with the claimant it would be “fundamentally unfair to deprive him of his right to appeal” due to his lack of notice within the statutory time period.
We herein uphold the appeal and vacate the non-suit. We remand this matter to the Commissioner acting for the Fifth District for further proceedings.
Commissioners Nancy E. Salerno and Ernie R. Walker concur in this opinion.
1 We note that a postponement was granted during the pendency of this appeal. BACK TO TEXT