State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Davis v. State of Connecticut Department of Children and Families

CASE NO. 5179 CRB-8-07-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 17, 2008

TRINENE DAVIS

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT DEPARTMENT OF CHILDREN AND FAMILIES

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS OF NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Francis Miniter, Esq., Miniter & Associates, 100 Wells Street, Hartford, CT 06103.

The respondent was represented by Philip Schulz, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 5, 2006 Finding and Dismissal of the Commissioner acting for the Eighth District was originally heard November 16, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton. During oral argument, it became evident that an evidentiary hearing was needed to address the following issues: show cause why appeal should not be dismissed as untimely and show cause why appeal should not be dismissed for failure to prosecute. An evidentiary hearing was held March 28, 2008 continued to May 16, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

FINDINGS AND OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the December 5, 2006 Finding and Dismissal of the Commissioner acting for the Eighth District.1 The Petition For Review was filed January 2, 2007 beyond the time period mandated in § 31-301(a) for filing appeals with the Compensation Review Board. Consequently, the matter was scheduled for a hearing before this board for the purpose of giving the appellant an opportunity to show cause why the appeal should not be dismissed under § 31-301(a) and for failure to prosecute the appeal with due diligence.

We begin with consideration as to whether the appellant has shown cause as to why the appeal should not be dismissed. Section 31-301(a) provides in pertinent part, “At any time within twenty days after entry of an award by the commissioner, after a decision of the commissioner … either party may appeal therefrom to the Compensation Review Board….” On its face the appellant’s appeal is late. In a Memorandum Of Law On Motion to Dismiss Appeal filed by claimant’s counsel on September 24, 2007 it is suggested, inter alia, that complying with the time requirements established in § 31-301(a) was an impossibility as the claimant did not receive a copy of the trial commissioner’s December 5, 2006 decision until December 22, 2006 and thus, the earliest time for filing the appeal would have been December 26, 2006. In fact the sum and substance of the appellant’s argument is as follows:

While the decision may have been filed with the Commission on or about December 5, 2006, it was not delivered to Appellant until    , December    , 2006, thus compromising her ability to respond in a timely fashion. While the reason for the delay is not known, it is likely that the Christmas postal rush affected delivery of the Finding and Dismissal. Appellant met with her counsel on January 2, 2007, and an immediate appeal was hand delivered to the Commission pursuant to the provisions of Conn. Gen. Stat. §31-301.

In an affidavit of the claimant appended to the Memorandum of Law, the claimant avers that she received the December 5, 2006 Finding and Dismissal on December 22, 2006 and “1 could not, therefore, file an appeal at the earliest until December 26, 2006, which date was beyond the twenty (20) day period for appeals.” (Emphasis ours) Thus, incorporating by reference the date of receipt stated in claimant’s affidavit with unspecified dates referenced in the claimant’s counsel’s Memorandum of Law, the appellant argues that complying with § 31-301(a) was an impossibility.

Oral argument in this matter was held November 16, 2007. At that hearing the appellant was given the opportunity to show cause why the appeal should not be dismissed on the basis of claimant’s untimely filing. Counsel made a number of statements concerning the delivery and arguable lack of receipt of the December 5, 2006 Finding and Dismissal. We determined that the timeliness of the filing of the appeal would turn on when the commissioner’s decision was sent to claimant’s counsel. See Schreck v. Stamford, 250 Conn. 592, 598 (1999). Further, as our Supreme Court noted in Hatt v. Burlington Coat Factory, 263 Conn. 279, 293 (2003);

The ten day appeal period is tolled if “the aggrieved party establishes that, through no fault of [its] own, [it] 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., supra, 250 Conn. 590-91. A party that has established that it failed to receive notice of the commissioner’s decision through no fault of its own “also must establish that the appeal was filed within ten days from the date that [it] actually received notice of the commissioner’s decision.” Id., 591 n. 14.

The resolution of the timeliness of the instant appeal turns on whether the appellant can establish that through no fault of the appellant the Commissioner’s decision was not received within twenty days of the time it was sent.2 In accordance with Schreck we scheduled an evidentiary hearing so as to give claimant’s counsel an opportunity to prove that his failure to receive notice of the trial commissioner’s decision was through no fault of his own. The evidentiary hearing was held before this board over the course of two sessions, March 28, 2008 and May 16, 2008.

Among the documents available to the board was the U.S. Postal Service tracking records reflecting that the trial commissioner’s December 5, 2006 decision was delivered to claimant’s counsel on December 7, 2006 at 1:17 pm.3 That tracking document indicated that the piece of mail addressed to “Miniter at 100 Wells” was signed for by someone identified as B.Gineyard. At oral argument on November 16, 2007, Attorney Miniter stated that he had no knowledge of anyone by that name and no one in his employ was so named. At the first session of the evidentiary hearing the appellee subpoenaed Benita Gineyard. See Respondent’s Exhibit 2. Ms. Gineyard testified that she was the security officer for 100 Wells Street the location where Attorney Miniter had his office. She testified that it was not uncommon for her to sign for mail and packages addressed to the building’s tenants. She further confirmed that the signature that was represented on the U.S.P.S. tracking documents was hers and while she could not specifically remember the circumstances surrounding the handling of this particular piece of mail, she testified that it was not unusual for her to sign for certified mail when a tenant’s office was closed or a tenant’s staff was unavailable. Under such circumstances, she would either give the mail to the tenant or tenant’s staff when either she walked to the tenant’s office or the tenant or tenant’s staff retrieved the mail from her. Security Officer Gineyard further testified that she had worked as the Security Officer for the 8am to 4pm shift at 100 Wells Street for a number of years. See March 28, 2008 Transcript, pp. 36-43, 61-63.

Attorney Miniter cross-examined the witness and while he attempted to call her credibility into question, it is the conclusion of this board that the witness’s testimony was credible insofar as it provided a basis for an inference that Attorney Miniter and his office acquiesced to the manner in which mail was received and distributed by Security Officer Gineyard. It also appears that the practice by which mail was handled and distributed to Attorney Miniter’s office was one that was established for some time. See March 28, 2008 Transcript pp. 69-70. While the methods and practice regarding the handling of Attorney Miniter’s mail may have been less than perfect, the imperfections were matters which Attorney Miniter could have remedied. However, for whatever reason Attorney Miniter appears to have acquiesced to and tolerated matters concerning the delivery and receipt of his mail once the U.S. Postal Service delivered the mail to his building. We do not think Attorney Miniter’s office management practices regarding the handling of mail serves to excuse him from running of the appeal period set out in § 31-301(a). Stated more succinctly, the appellant has not persuaded this board that, “through no fault of [its] own, [it] did not receive notice of the commissioner’s decision within ten [twenty] days of the date that it was sent.” Hatt, supra.

We therefore conclude that the appeal was untimely and it is therefore dismissed.

Commissioners Ernie R. Walker and Charles F. Senich concur.

1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 Public Act 01-22 amended 31-301(a) and extended the time for filing an appeal from 10 to 20 days. BACK TO TEXT

3 This exhibit was entered as Respondent’s Exhibit 3 and Exhibit 4 and was marked for ID on the basis of Attorney Miniter’s objection. In part Attorney Miniter argued that he had never requested that the U.S. Postal Service provide the tracking receipt and the communication from the U.S. Postal Service dated November 1, 2007 and faxed to 860-344-7487 states “Dear MINITER” in the salutation. Attorney Miniter suggested that a fraud was being perpetrated on the tribunal as the communication suggested that someone had falsely assumed his identity. To that end, Attorney Miniter requested that the evidentiary hearing be continued so that he could ascertain relevant U.S. Postal law and regulations and investigate this misuse of his persona. At the May 16, 2008 session of the hearing, Attorney Miniter proffered no evidence as to this issue. We therefore, deem any objection to the admission of Respondent’s Exhibit 3-4 as waived. See March 28, 2008 Transcript pp. 49-60. BACK TO TEXT

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