Collier v. Kingswood Oxford School

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This ruling regarding respondents’ Motion to Dismiss the Claimant’s Petition for Review from the November 4, 1994 Finding and Dismissal of the Commissioner acting for the Sixth District was heard March 24, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D’Oyen and Amado J. Vargas.

DISMISSAL ORDER

JESSE M. FRANKL, CHAIRMAN. The claimant filed an untimely petition for review from the Sixth District Commissioner’s November 4, 1994 Finding and Dismissal. To date, the claimant has failed to file his reasons for appeal, a brief, or a motion to correct.

The claimant’s letter of appeal, which we will consider to constitute a petition for review, was filed on November 15, 1994, eleven days after the trial commissioner’s Finding and Dismissal had been issued on November 4, 1994. The claimant’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 ten 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). We have consistently ruled 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. Corona v. Uniroyal Chemical, Inc., 9 Conn. Workers’ Comp. Rev. Op. 105, 987 CRD-5-90-3 (March 13, 1991) (dismissing appeal to this Board filed on the eleventh day following trial commissioner’s decision); Famiglietti v. Dossert Corporation, 8 Conn. Workers’ Comp. Rev. Op. 65, 804 CRD-5-88-12 (April 17, 1990); Johnston v. ARA Services Inc., 7 Conn. Workers’ Comp. Rev. Op. 19, 20, 765 CRD-7-88-8 (June 29, 1989).

The claimant contends that his appeal was filed late due to circumstances beyond his control. Specifically, the claimant contends that his attorney did not notify him of the commissioner’s November 4, 1994 decision until November 9, 1994, and subsequently on November 10, 1994 after 4:00 P.M. his attorney advised him that he would not file an appeal on his behalf. The following day, November 11, 1994, a Friday, was a state holiday. Therefore, the claimant contends that he could not contact the Workers’ Compensation office in order to find out what to do regarding filing an appeal until Monday, November 14, 1994, which is the day that he mailed the appeal letter.

The claimant has not contended that his attorney received the commissioner’s decision in an untimely manner, or that the trial commissioner’s decision was not mailed to the parties in a timely manner.1 Rather, the claimant contends that he was not able to mail a timely appeal because his attorney delayed in advising him that he would not file an appeal on his behalf. Under these circumstances, we do not find that it is necessary to remand this issue for a determination of the date which the commissioner’s decision was sent. See Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994). We are sympathetic to the claimant’s circumstances caused by his legal counsel’s failure to promptly communicate to him regarding his decision not to file an appeal. However, we do not agree with the claimant’s contention that it was impossible to file a timely appeal under these circumstances.2 We conclude that the claimant’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, even if jurisdiction existed to consider the claimant’s appeal, it is highly unlikely that this Board would reverse the trial commissioner’s decision. This Board does not conduct a de novo review of the facts on appeal. Rather, the conclusions drawn by the trial commissioner from the facts found “must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). We cannot review the commissioner’s conclusions when they depend upon the credibility of the witnesses and the weight of the evidence. Id. “If supported by evidence and not inconsistent with the law, the [trial commissioner’s] inference that an injury did or did not arise out of and in the course of employment is conclusive.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The claimant’s appeal is dismissed as untimely.

Commissioners Roberta Smith D’Oyen and Amado J. Vargas concur.

1 We note that at oral argument before this Board, the respondents’ attorney testified that his office received the trial commissioner’s decision on November 7, 1994. BACK TO TEXT

2 The claimant could have filed an appeal based upon the attorney’s notification to him on November 9, 1994 that his claim had been denied. Moreover, the claimant could have asked his attorney on November 10, 1994, for information on how to file an appeal. BACK TO TEXT