Schreck v. City of Stamford

The claimant was represented by Joseph Gerardi, Esq., 1074 Hope Street, Stamford, CT 06907.

The respondent was represented by Christine C. Murphy, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the March 29, 1996 Finding and Order of the Commissioner acting for the Seventh District was heard December 13, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has filed an untimely petition for review from the March 29, 1996 Finding and Order of the Commissioner acting for the Seventh District. In that decision, the trial commissioner determined that the respondent was entitled to a credit for the claimant’s third-party settlement against its workers’ compensation liability in accordance with § 31-293. In support of his appeal the claimant contends that the trial commissioner’s decision is invalid because it was issued subsequent to 120 days following the close of the formal hearing. In addition, the claimant contends that the trial commissioner erred in allowing the respondent a credit pursuant to § 31-293 where the claimant’s settlement with the third-party defendant occurred without filing a law suit.

We will first address the respondent’s motion to dismiss the claimant’s late appeal. The claimant’s petition for review was filed on April 11, 1996, thirteen days after the trial commissioner’s Finding and Order had been issued on March 29, 1996. The claimant’s attorney contends that the post office had attempted delivery on March 30, 1996 but that his office was closed on that date and he did not receive the trial commissioner’s decision until April 11, 1996. The claimant’s petition for review was not filed within the time limit prescribed by § 31-301(a), 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 he received the commissioner’s decision in an untimely manner, but does not dispute that the decision was sent to the correct address in a timely manner. This board may only consider appeals filed within ten days of the date that meaningful notice of the commissioner’s decision was sent to the appellant. § 31-301(a); Conaci v. Hartford Hospital, 36 Conn. App. 298, 303 (1994). Timeliness depends upon the date that meaningful notice was sent to the parties rather than when meaningful notice was received. Conaci, supra, 303-304; Cyr v. Domino’s Pizza, 15 Conn. Workers’ Comp. Rev. Op. 151, 2168 CRB-1-94-10 (Jan. 26, 1996); Vega v. Waltsco, Inc., 15 Conn. Workers’ Comp. Rev. Op. 307, 2078 CRB-2-94-6 (June 21, 1996). 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.