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Byczajka v. City of Stamford

CASE NO. 5023 CRB-7-05-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 26, 2008

THOMAS M. BYCZAJKA

CLAIMANT-APPELLANT

v.

CITY OF STAMFORD

EMPLOYER

and

WEBSTER RISK SERVICES, INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Andrew J. Morrissey, Esq., Morrissey, Morrissey & Mooney, LLC, 203 Church St., P.O. Box 31, Naugatuck, CT 06770.

The respondent employer was represented by Scott Wilson Williams, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.

The Petition for Review from the October 28, 2005 Finding and Dismissal of the Commissioner acting for the Seventh District was heard September 28, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the October 28, 2005 Finding and Dismissal by the Commissioner acting for the Seventh District. On appeal, the claimant seeks to challenge the trier’s ruling that his claim for benefits under § 7-433c C.G.S. was untimely. The respondent has moved to dismiss this appeal on the ground that the petition for review was untimely filed. Because that issue affects our jurisdiction over the appeal, we must resolve it first.

On October 28, 2005, this Commission sent notice of the trier’s Finding and Dismissal via certified mail to James L. Rapaport, Esq., who represented the claimant at the formal hearing. According to the May 1, 2007 Stipulation of Fact by the parties, Attorney Rapaport received the decision on October 31, 2005. That same day, he informed the claimant’s conservatrix that the claim had been dismissed, and mailed the decision to her. He also told her that he would not file an appeal on her behalf, which would require her to handle it pro se or retain other counsel.

The respondents’ Motion to Dismiss is dated December 1, 2005, and states simply that the claimant submitted a petition for review dated November 18, 2005 [a Friday], one day after the expiration of the twenty-day appeal period that followed the trial commissioner’s October 28, 2005 decision. The claimant has objected to that motion, stating that the claimant’s conservatrix received notice of the decision on or after October 31, 2005, and that she filed a petition for review within twenty days of that date. The claimant argues that the twenty-day time limitation for filing an appeal under § 31-301(a) C.G.S. did not begin running until his conservatrix had meaningful notice of the decision, relying on Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999).

According to § 31-301(a), either party may appeal from a trial commissioner’s decision “at any time within twenty days” after entry of that decision. The twenty-day period begins to run on the day on which the party wanting to appeal is sent meaningful notice of the decision. Kudlacz, supra, citing Conaci v. Hartford Hospital, 36 Conn. App. 298, 303 (1994). If an appeal is not filed within the statutory period, this board lacks jurisdiction to consider its merits. Numan v. Warnaco, Inc., 5007 CRB-4-05-10 (September 22, 2006).

Our Supreme Court held in Kudlacz, supra, that the statute of limitations is tolled where the party wanting to appeal does not receive notice of the decision until after the expiration of the appeal period. “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).” Id., p. 589. The Court distinguished between an aggrieved party who forfeits the right to appellate review by failing to take steps to perfect that right and an aggrieved party whose appellate right is deprived “solely because of a failure of notice for which that party bears no responsibility.” Id. The Court carved out an exception to the twenty-day rule for cases in which a party demonstrates that, though notice may have been sent, it was not received by the party within the appeal period. (At that time, § 31-301(a) provided ten days within which to appeal; now, it provides twenty.) The Court also echoed the earlier comments of Judge Spear (see Kudlacz v. Lindberg Heat Treating Co., 49 Conn. App. 1, 12 (1998)(Spear, J., dissenting)) by observing that, should a case arise in which notice was received so late during the appeal period that the time to appeal was severely compressed, those circumstances could be addressed when they arose.

The claimant’s conservatrix in this case was informed of the trier’s decision on October 31, 2005—the same day it was received by the attorney of record, who immediately sent her a copy of it, and informed her that he would not represent her should she pursue an appeal. This commission’s service of the Finding and Dismissal on Attorney Rapaport was proper given that he was still acting as claimant’s counsel on the date of the trier’s decision. Schreck v. Stamford, 250 Conn. 592, 595 (1999)(in cases in which party is represented by counsel, appeal period commences on date notice is sent to party’s counsel). The claimant’s conservator was informed of the ruling immediately, along with her new “pro se” status. She still had 17 days within which to act before the appeal period expired under § 31-301(a), either by filing a petition for review with this board or some other document indicating her intent to take an appeal. See Numan, supra, (board may consider documents that communicate desire to appeal as requests to review trial commissioner’s decision).

Absent evidence that the claimant was deprived of a meaningful opportunity to file a timely appeal, we may not consider whether an attorney’s decision not to appeal following receipt of the trier’s ruling may toll or restart the statute of limitations on the claimant’s right to file an appeal, either pro se or through other counsel. This approach is consistent with the basis of the Kudlacz decision, which extended the statutory notice period where a party’s appellate rights were lost solely because of a failure of notice for which the party bore no responsibility. Even though the claimant’s petition for review here was only filed one day late, the law does not allow us to extend the statutory filing period to create jurisdiction over the appeal. See Downer v. Mark IV Construction, Inc., 4462 CRB-3-01-11 (November 15, 2002)(pro se claimant’s letter to trial commissioner was construed as petition for review, but motion to dismiss granted because it was filed one day beyond expiration of twenty-day appeal period).

The claimant’s appeal is therefore dismissed.

Commissioners Amado J. Vargas and Scott A. Barton concur.

Workers’ Compensation Commission

Page last revised: March 28, 2008

Page URL: http://wcc.state.ct.us/crb/2008/5023crb.htm

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