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Gooden v. Edward Craven

CASE NO. 5260 CRB-2-07-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 29, 2008

JOHN G. GOODEN

CLAIMANT-APPELLEE

v.

EDWARD CRAVEN

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by James A. Hall, IV, Esq., Law Offices of James A. Hall, LLC, P.O. Box 61, Mystic, CT 06355.

The respondent-employer was pro se and did not file a brief or attend oral argument.

The respondent Second Injury Fund was represented by Taka Iwashita, 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 May 22, 2007 Amended Finding and Award from the Commissioner acting for the Second District was heard February 29, 2008 before a Compensation Review Board panel consisting of Commissioners Ernie R. Walker, Charles F. Senich and Amado J. Vargas.

OPINION

ERNIE L. WALKER, COMMISSIONER. The instant matter was heard by the Compensation Review Board at oral argument held on February 29, 2008. The matter was calendared for oral argument for the purpose of permitting the appellant an opportunity to show cause why the appeal should not be dismissed for failure to file a timely appeal to the Compensation Review Board pursuant to § 31301(a) C.G.S. or for failure to prosecute with due diligence pursuant to Practice Book § 851.

The respondent-employer filed an untimely petition for review on August 16, 2007, approximately eightyseven days after the trial commissioner’s Amended Finding and Award issued on May 22, 2007.1 Since that date, the respondentemployer has not filed Reasons for Appeal or a brief in support of this appeal and did not attend the oral argument on the appeal. The respondentemployer also did not file any motions for an extension of time in which to submit Reasons for Appeal or a brief, and did not seek to postpone the hearing on this appeal.

The respondent-employer’s petition for review was not filed within the time limit prescribed by § 31-301(a) C.G.S., which states that “[a]t any time within twenty days after entry of an award by the commissioner . . . either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner . . . an appeal petition. . . .” (Emphasis added). It has repeatedly been held that the appealing party must file its appeal within the prescribed time period in order for this Board to have subject matter jurisdiction over the appeal. Kudlacz v. Lindberg Heat Treating Company, 49 Conn. App. 1 (1998); Conaci v. Hartford Hospital, 36 Conn. App. 298, 303-304 (1994); Cioffi v. Trumbull Marriot, 15 Conn. Workers’ Comp. Rev. Op. 297, 2209 CRB4-94-11 (June 20, 1996). We conclude that the respondentemployer’s petition for review was not filed within the time limits required by § 31-301(a) and we thus must dismiss it as untimely.

Moreover, as stated, the respondentemployer did not file Reasons for Appeal or a brief in support of this appeal, and did not attend the oral argument on the appeal. The respondent-employer also did not file any motions for an extension of time in which to submit Reasons for Appeal or a brief, and did not seek to postpone the hearing on this appeal. Thus, even if jurisdiction existed, the respondentemployer’s failure to file any supporting documentation in the prosecution of this appeal would most likely result in our dismissal of the appeal on the basis of the appellant’s failure to prosecute with proper diligence. See Practice Book § 851; State of Connecticut v. Todd Rose, 3896 CRB-2-98-9 (March 3, 1999); Reynolds v. Atlantic Foods, 3676 CRB-7-97-9 (Oct. 20, 1998).

We therefore dismiss the respondent-employer’s appeal.

Commissioners Charles F. Senich and Amado J. Vargas concur in this decision.

1 It should be noted that the trial commissioner issued his first Finding and Award in this matter on June 28, 2006, followed by a second Finding and Award on May 14, 2007 which was subsequently amended on May 22, 2007. In that the respondent-employer in his Petition for Review failed to indicate the date of the Finding and Award under appeal, we have proceeded on the assumption that the appeal was taken against the Amended Finding and Award of May 22, 2007. BACK TO TEXT

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