Grimes v. State of Connecticut/Department of Mental Health and Addiction Services

The claimant was represented by Rebecca L. Johnson, Esq., P.O. Box 1512, Bridgeport, CT 06601.

The Second Injury Fund was represented by Matthew Levine, Esq., and Michael Belzer, Esq., Assistant Attorneys General, P. O. Box 120, 55 Elm St., Hartford, CT 06141-0120.

This Petition for Review from the May 26, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District was heard January 8, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

DISMISSAL ORDER

JESSE M. FRANKL, CHAIRMAN. The claimant has filed an untimely petition for review from the May 26, 1998 Finding and Dismissal of the trial commissioner acting for the Fourth District. In that decision the trial commissioner denied the claimant’s request for a continuance of the formal hearing, whereupon the claimant offered no evidence or testimony and rested. In support of her appeal, the claimant’s counsel contends that the denial of her request for a continuance constituted an abuse of discretion. We find no error.

The claimant’s petition for review was filed on June 8, 1998, over ten days after the trial commissioner’s Finding and Dismissal had been mailed to the parties on May 26, 1998 via certified mail, return receipt requested, as indicated by a signed certification in the record. The tenth day fell on Friday, June 5, 1998. 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). 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).

In the instant case, the claimant’s counsel contends that she hand delivered the petition for review on June 5, 1998 after the close of business hours. We have specifically held that a appeal petition to be late where the claimant filed the appeal after 5:00 p.m. on the tenth day following notice of the decision, and it was not stamped in by the District Office until the next business day. Hurley v. Bridgeport, 3435 CRB-4-96-9 (January 20, 1998). The appeal must be filed by the close of the business day in order to be considered as having been filed on that date. Id. 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.

Even if we were to consider the merits of the claimant’s appeal, we would nevertheless affirm the trial commissioner’s decision as it was within the trial commissioner’s discretion to deny the claimant’s request for a continuance of the formal hearing. “We have consistently held that it ‘is within the broad discretion of the commissioner to grant or deny a continuance, and such a decision is virtually unreviewable.’” Liano v. Bridgeport, Case No. 3199 CRB-4-95-10 (March 25, 1997), quoting Mercado v. Personal Moving Services, 14 Conn. Workers’ Comp. Rev. Op. 364, 365, 2023 CRB-4-94-5 (Sept. 26, 1995); see also Rindos v. J.F. Barrett & Sons, Case No. 3188 CRB-3-95-8 (February 27, 1997). In the instant case, the trial commissioner found that the claimant had requested the formal hearing, and further found that the respondent’s counsel noted that no notice or request by claimant’s counsel was received prior to the scheduled hearing indicating that the claimant did not wish to go forward at that time. (Finding No. 2). We find no abuse of discretion on the part of the trial commissioner in denying the claimant’s request for a continuance.