McNerney v. City of New Haven

CASE NO. 2098 CRB-3-94-7

COMPENSATION REVIEW BOARD

WORKERS’COMPENSATION COMMISSION

SEPTEMBER 5, 1995

KEVIN MCNERNEY

CLAIMANT-APPELLEE

v.

CITY OF NEW HAVEN

EMPLOYER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Christopher P. DeMarco, Esq., Farver & DeMarco, 2842 Old Dixwell Avenue, Hamden, CT 06518.

The respondent was represented by Donna Chance Dowdie, Esq., Assistant Corporation Counsel, 165 Church Street, New Haven, CT 06510.

This Petition for Review from the July 8, 1994 Finding of Compensability of the Commissioner acting for the Third District was heard August 25, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D’Oyen and Michael S. Miles.

RULING ON CLAIMANT’S AUGUST 25, 1995 MOTION TO DISMISS

JESSE M. FRANKL, CHAIRMAN. The claimant, on August 25, 1995, filed a Motion to Dismiss the respondent’s appeal based upon the respondent’s failure to prosecute its appeal with due diligence. Specifically, the claimant contends that it was prejudiced by the respondent’s failure to file its brief in a timely manner.

The respondent filed a timely appeal on July 15, 1994 from the July 8, 1994 Finding of Compensability of the Commissioner acting for the Third District. The respondent filed its reasons of appeal and motion to correct in a timely fashion on July 25, 1994. In addition, the respondent filed a Motion to Submit Additional Evidence on July 25, 1994, which was denied by this Board on March 20, 1995. Thereafter, the merits of the respondent’s appeal was scheduled to be heard by this Board on August 25, 1995. The respondent was required to file her brief on or before June 5, 1995, but did not file her brief until August 22, 1995. Accordingly, the claimant was not afforded sufficient time to prepare a reply brief.

The respondent’s attorney contends that she was unable to file her brief in a timely manner due to surgery, hospitalization, and consequent lost work time. The claimant, in his motion to dismiss, requests as an alternative to dismissing the respondent’s appeal, that the claimant be afforded a reasonable time period to file a response brief, and thereafter to appear at oral argument before this Board. Under the compelling circumstances regarding the respondent’s attorney in this matter, we agree that the reasonable course is to allow the respondent to pursue its appeal. The claimant has until September 18, 1995 to file his brief. Oral argument before the Compensation Review Board will be scheduled to occur on November 17, 1995.

Commissioners Roberta Smith D’Oyen and Michael S. Miles concur.