CASE NO. 1263 CRD-1-91-7
COMPENSATION REVIEW BOARD/DIVISION
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 14, 1993
AETNA CASUALTY AND SURETY
The claimant was represented by Angelo Cicchiello, Esq., 364 Franklin Avenue, Hartford, CT 06114 who filed a brief but did not appear at oral argument.
The respondents were represented by Jason Dodge, Esq., James L. Pomeranz, Esq., and Anne Kelly Zovas, Esq., Pomeranz, Drayton sand Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.
This Petition for Review from the July 15, 1991 Finding and Order of the Commissioner at Large acting for the First District was heard October 30, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr.
JESSE FRANKL, CHAIRMAN. The respondents seek to dismiss the present appeal because claimant failed to file her Petition for Review within ten days as provided by General Statutes Sec. 31-301(a). The Commissioner at Large acting for the First District issued a Finding and Order for the respondents on July 15, 1991. The claimant’s Petition for Review, however, was not filed until July 31, 1991, the sixteenth day following the Finding and Order.
The timeliness of the claimant’s appeal implicates our subject matter jurisdiction over this appeal. Johnston v. ARA Services, Inc., 7 Conn. Workers’ Comp. Rev. Op. 19, 765 CRD-7-88-8 (1989). In response to the respondents’ motion to dismiss, the claimant submitted an affidavit from her attorney’s receptionist explaining the receptionist’s practice to promptly date stamp all mail received in the attorney’s office. The affidavit further indicates that the July 15, 1991 Finding and Order was date stamped and received by the claimant’s attorney on July 23, 1991. The claimant contends that because notice of the challenged decision was not received until July 23, 1991, she had ten days from the date of receipt, that is, until August 2, 1991, to file her appeal. We do not agree.
In Trinkley v. Ella Grasso Regional Center, 220 Conn. 739 (1992), our Supreme Court addressed the issue of calculating the timeliness of an appeal from a commissioner’s decision. The Trinkley court noted that the determination that an appeal is untimely cannot be made on the basis of the date of decision alone. Rather, in dismissing an appeal, this Board must consider when notice of the decision was received by the appellant. Id., 743. Nowhere in Trinkley, however, did the Court state that an appealing party is entitled in all circumstances to a ten-day appeal period commencing from the date of notice.
The rules set forth in Trinkley have long been part of our jurisdictional jurisprudence. In Murphy v. Elms Hotel, 104 Conn. 351 (1926), relied on by the Trinkley court, our Supreme Court concluded that although the Workers’ Compensation Act specifies that an appeal should be taken within ten days after entry of a commissioner’s award, “the General Assembly intended this provision to mean ten days after notice to the party of the entry of such finding; otherwise, in the event of the failure of the commissioner to notify the party of his finding and award within the ten-day period, the taking of the appeal would be fruitless.” (Emphasis added.) Id., 352.
Neither Murphy nor Trinkley, however, require that a party has ten days to appeal from receipt of notice where the party receives notice of the commissioner’s award within the original ten-day appeal period. Consequently, we have interpreted Murphy narrowly to save a late appeal filed within ten days after notice of the commissioner’s award only where the party did not receive notice of the decision within the ten days of the entry of the award. Thus, in Stevens v. City of Hartford, 8 Conn. Workers’ Comp. Rev. Op. 134, 831 CRD-1-89-2 (1990), we did not rely on the date of entry of the commissioner’s award where notice of the award was received after the ten-day period commencing with the entry of the award. Similarly, in Paccadolmi v. Town of Newtown, 10 Conn. Workers’ Comp. Rev. Op. 116, 117 n.1, 1270 CRD-4-91-8 (1992), the only post-Trinkley case permitting an appeal filed more than ten days after the date of the commissioner’s decision, the claimant did not receive the decision within the original ten-day appeal period and thereafter properly filed his appeal within ten days of when he received the commissioner’s ruling. By contrast, in Corona v. Uniroyal Chemical, Inc., 9 Conn. Workers’ Comp. Rev. Op. 105, 987 CRD-5-90-3 (1991), we dismissed an appeal filed more than ten days after entry of the commissioner’s award but filed within ten days of receipt of the decision by the appellant where the appellant had received the commissioner’s award during the original ten-day appeal period. Accord Shaskus v. Structural Accessories Inc., 9 Conn. Workers’ Comp. Rev. Op. 197, 1061 CRD-5-90-6 (1991).
Moreover, such an interpretation of Sec. 31-301(a) is consistent with rationale articulated in Murphy v. Elms Hotel, supra, and with the due process concerns articulated in Kron v. Thelen, 178 Conn. 189, 193-97 (1979), both of which were relied on by the court in Trinkley. In Kron, the plaintiff did not receive notice of the action of the Probate Court approving an accounting until after the thirty-day statutory appeal period had expired. Id, 190. The Kron court was concerned that the right of appeal would be rendered meaningless by strict adherence to the thirty-day appeal period under the circumstances presented in that case. Id., 193; see also Murphy v. Elms Hotel, supra. Thus, the Kron plaintiff’s appeal was timely because it was filed within thirty days after she became aware of the Probate Court’s decree.
Significantly, the Kron court noted that had the plaintiff been properly informed that the Probate Court had issued its decree on June 6 when she made inquiry to the court on June 27, she could have thereafter taken a timely appeal. Kron v. Thelen, supra, 197. Thus, according to Kron, where notice is delayed but received within the appeal period, the plaintiff’s right to appeal would not have been defeated or rendered meaningless by the use of the original deadline. Consequently, the Kron court’s concern with “[f]undamental tenets of due process . . . [which] require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses”; id., 193; is not implicated where the appellant received the notice of the decision within the original appeal period and is therefore able to take the necessary steps to file an appeal within that timeframe. See Hubbard v. Planning Commission, 151 Conn. 269, 272-73 (1963).1
In the present case, the claimant asserts that she did not receive notice of the commissioner’s July 15 decision until eight days later on July 23. Notwithstanding this delay, the claimant has not suggested any reason why she could not have still filed a timely appeal during the remaining days of the original ten-day appeal period. We do not believe that such a requirement would have been unreasonable under the circumstances of this case. Since the claimant received notice of the commissioner’s July 15 decision within the original ten-day appeal period, she had until July 25 to timely file her appeal. Corona v. Uniroyal Chemical, Inc., supra. Her failure to do so deprived us of jurisdiction over this appeal. Id.
As the appeal is dismissable for late filing, we need not consider any other issues raised. We, therefore, dismiss the claimant’s appeal.
Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr. concur.
1 In Ward v. Chesebrouqh Ponds, Inc., 10 Conn. Workers’ Comp. Rev. Op. 111, 1161 CRD-7-91-1 (1992), we stated that Trinkley “held that the time period for filing appeals to the Compensation Review Division begins to run when notice of an award is given to the party wishing to appeal.” Id., 112. This statement in Ward is plainly dicta, as that case involved an appeal which substantially complied with the timely filing requirement based on the date of the commissioner’s decision. To the extent that War d’s discussion of Trinkley is inconsistent with our interpretation of Trinkley in this opinion, we decline to follow it.
Additionally, we note that a requirement that a party seeking dismissal must show prejudice as a result of an untimely filing appears in cases like Trinkley and Ward where a prior timely filing was deemed to be “substantial compliance,” a situation not present in this case. BACK TO TEXT