Schreck v. City of Stamford

CASE NO. 3322 CRB-07-96-04

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 21, 2000

ROBERT SCHRECK

CLAIMANT-APPELLANT

v.

CITY OF STAMFORD

EMPLOYER

SELF-INSURED

and

AON RISK SERVICES OF CONN.

ADMINISTRATOR

RESPONDENTS-APPELLEES

APPEARANCES:

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

The respondents were represented by Richard S. Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

As directed by the Supreme Court of this State in Schreck v. Stamford, 250 Conn. 592 (1999), an evidentiary hearing concerning the claimant’s receipt of notice of the March 29, 1996 Finding and Order of the Commissioner acting for the Seventh District was conducted on January 21, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

FINDINGS AND OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present case stands in an unusual posture for an appellate matter, and requires us to deviate from the format this board normally uses in hearing argument and structuring our opinions. Its relevant history is as follows. The claimant originally petitioned for review from a March 29, 1996 Finding and Order of the Commissioner acting for the Seventh District. There, the trier determined that the respondents were entitled under § 31-293 C.G.S. to a credit against the claimant’s third-party settlement. The claimant filed his appeal on Thursday, April 11, 1996, thirteen days after the commissioner’s order had been issued. The respondents moved to dismiss the petition for review for tardiness, as § 31-301(a) limits the appeal period of a workers’ compensation decision to “any time within ten days after entry of an award by the commissioner.” The claimant’s counsel explained to this board that the post office had attempted to deliver a copy of the trier’s decision on March 30, 1996, but his office was closed on that date, and it was over a week later before the letter was in fact delivered. Concluding that we lacked jurisdiction under these circumstances to consider the claimant’s appeal, we granted the Motion to Dismiss, stating that an appeal’s timeliness “depends upon the date that meaningful notice was sent to the parties rather than when meaningful notice was received.” Schreck v. Stamford, 3322 CRB-7-96-4 (Sept. 23, 1997), quoting Conaci v. Hartford Hospital, 26 Conn. App. 298, 303 (1994).

The claimant sought review of that dismissal, and the Appellate Court ruled in his favor, relying on the absence of proof that notice had ever been sent directly to the claimant rather than his counsel. Schreck v. Stamford, 51 Conn. App. 92 (1998), citing Vega v. Waltsco, Inc., 46 Conn. App. 298 (1997). The respondents then appealed that decision to our Supreme Court, which reversed the Appellate Court’s decision that notice must be sent to the claimant rather than his counsel in order to trigger the commencement of the ten-day appeal period. Schreck v. Stamford, 250 Conn. 592, 595 (1999). “The commissioner’s delivery of notice to a party’s chosen legal representative promotes efficiency in the workers’ compensation system . . . . Indeed, we may presume that a party who has retained counsel in a workers’ compensation case has done so precisely because that party does not wish to assume personal responsibility for complying with the various procedural requirements of the act.” Id., 598.

However, that was not the end of the debate. The claimant had also consistently maintained that his counsel did not receive notice of the trier’s decision until more than ten days after it was sent. In footnote 5 of its opinion, the Court noted that it had just decided the case of Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 590-91 (1999), where it held that the § 31-301(a) appeal period is tolled “when a party wishing to appeal establishes that, through no fault of his own, he did not receive notice of the commissioner’s decision within ten days of the date that it was sent.” Schreck, supra, 595. Based on Kudlacz, the claimant in this case was also entitled to offer proof that his counsel failed to receive timely notice of the decision, and that such failure was not counsel’s fault. The Court remanded the case to the Appellate Court “with direction to remand the case to the board for further proceedings according to law.” Id., 601.

In most appeals, this board is presented with the decision of a trial commissioner for review, and it is with a deferential eye that we inspect the factual findings of the trial commissioner. See, e.g., Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). “In such cases the [board] will not retry the facts or hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusion reached.” Admin. Reg. § 31-301-8. The issue currently before this board does not fit that traditional mold, however, for there are no factual findings for us to review. In this case, and in two other cases in which a similar issue is currently pending,1 we are instead charged with the responsibility to determine the date that the claimant (or his counsel) received notice of the trial commissioner’s decision.

Accordingly, the January 21, 2000 proceeding before this panel was conducted on the record, and the standard argument-response-rebuttal format of this forum was adapted to facilitate the introduction of evidence. Each party was given the opportunity to submit relevant documentation into the record, and the claimant’s counsel was sworn in as a witness so that he could testify regarding his receipt of the trial commissioner’s March 29, 1996 decision. The respondents had filed a Request for Change of Venue prior to the CRB hearing, which they withdrew when we agreed to take notice of a declaration and records that they had obtained from the post office. Respondent’s Exhibit 1. The claimant’s only exhibit was the envelope that had contained the commissioner’s decision. Claimant’s Exhibit A.

The claimant has raised two distinct arguments in his brief: (1) that counsel, through no fault of his own, did not receive timely notice of the trier’s decision, and (2) that § 31-321 C.G.S. does not permit the sending of notice by certified mail, return receipt requested. This board now makes the following factual findings, based on our assessment of the evidence offered by the parties:

1. The March 29, 1996 Finding and Order of Commissioner Metro was sent that same day via certified mail, return receipt requested, to both parties’ counsel. The claimant’s copy of the decision was sent to Joseph Lucien Gerardi, Esq., at 1074 Hope Street, Stamford, CT 06907, which was, and still is, his correct business address. See Claimant’s Exhibit A.

2. The post office attempted to deliver the certified letter to Attorney Gerardi on March 30, 1996, a Saturday on which counsel’s office was not open. As no one was available to sign for the letter, the postal carrier kept it in his or her possession.

3. Counsel testified, and we so find, that on the following Monday, April 1, 1996, he found a small yellow notice in the mailbox indicating that delivery of a certified letter had been attempted, and that re-delivery was forthcoming. The yellow tab did not specify to which post office the letter had been returned, who sent the letter, or when the next delivery attempt would occur.

4. This seemingly innocuous yellow slip was not preserved by counsel, and has presumably been discarded. Thus, it is not part of the record here.

5. Counsel did not try to track down the letter, as he had little information regarding its contents or whereabouts, and had no particular reason to expect that its re-delivery would be delayed.

6. The post office’s next attempt at delivery of the certified letter, which was successful, was on Thursday, April 11, 1996. Both the testimony of Attorney Gerardi and the notations on the envelope support this finding.

7. The record contains the original copy of the trial commissioner’s decision, with return receipts attached. Those “green cards” corroborate the April 11 receipt date asserted by the claimant. They also indicate that the respondents’ counsel received its notice on March 29, 1996, the same day that the trier’s decision was dated and sent.

8. After opening the certified envelope and reading the decision on April 11, 1996, the claimant’s counsel immediately went to the Seventh District office, where he filed a petition for review on his client’s behalf. At this point, thirteen days had elapsed since the trial commissioner’s decision had been mailed.

9. The respondents introduced into evidence a small packet of documents that included a signed declaration from a United States Postal Service paralegal specialist, excerpts from the Postal Operations Manual that describe the procedures for handling certified mail, a copy of the standard Form 3849 that a carrier is required to leave when a certified article cannot be delivered, and the codified federal regulations that define certified mail, registered mail, and return receipts. Respondents’ Exhibit 1. (We note that the excerpts from the Postal Operations Manual do not include § 811.4, which details the delivery rules for registered and certified mail. See § 812.21.)

10. The standard Form 3849, if completed in its entirety, would inform a postal customer (1) when delivery of the certified articles was attempted, (2) the name of the sender, and the number and type of articles concerned, (3) if re-delivery was desired, whether the customer or an agent needed to be present to sign for the articles (thus precluding the carrier from simply leaving them in a specified place), and (4) where and when the articles would be available for retrieval, in the event that the customer would prefer to pick up the mail himself. The form warns the customer that at least two delivery days ought to be allowed for re-delivery, though if he authorizes such service, it allows him to choose which day of the week the next transfer should be attempted.

11. The claimant’s counsel stated that the Form 3849 did not look like the notice he had received. He attested that he clearly recalled his yellow slip, which did not contain information such as the name of the sender and the post office where the letter was being held. As the “re-delivery” option had already been selected by the postal carrier, he thought that the wisest course of action would be to wait a few days, as he expected that service would be attempted again soon. We judge this testimony to be credible.

12. We will not presume based on the Postal Operations Manual that the postal carrier left behind a thoroughly completed Form 3849 upon failure to deliver the certified letter. If the carrier had done so, thereby informing counsel that the letter was from the workers’ compensation commission, counsel would most likely have attempted to ascertain the contents of the letter as soon as possible, given his natural interest in the outcome of the cases that he tries before this agency.

13. 39 C.F.R. 3001, Subpart C, Appendix A, §§ 941, 942 and 945 provide definitions of Certified Mail, Registered Mail and Return Receipt. While certified mail service provides a mailing receipt to the sender and a record of delivery at the post office; § 941.11; return receipt service also provides “evidence to the mailer that an article has been received at the delivery address.” Section 945.11 (Emphasis added). Return receipt service is available for eight types of mail, including both certified and registered mail.

14. Though the regulations suggest the nature of the distinction between certified mail and certified mail with a return receipt requested, no specific evidence was offered to describe the precise differences between the way that the post office handles these two categories of mail.

From these findings, we conclude that the claimant’s counsel did not receive notice of the trial commissioner’s decision within the ten-day appeal period prescribed by § 31-301(a), and that he was not at fault for failing to receive such notice. The scant information in the note left by the postal carrier would not have put a reasonable person on alert that a time-sensitive decision of the workers’ compensation commission was awaiting delivery. Also, counsel had no basis to suspect that re-delivery of this unidentified letter, whatever its nature, was going to take twelve days. The claimant is thus entitled to reinstatement of his appeal pursuant to our Supreme Court’s mandate in Schreck, supra.

As for § 31-321 C.G.S., which requires that notices under Chapter 568 be served “personally or by registered or certified mail,” we reiterate our statement at the formal hearing expressing our reluctance to address the distinction between certified mail and certified mail, return receipt requested. See January 21, 2000 Transcript, p. 22. This board has no expertise in the area of postal procedures, and there is insufficient evidence in the record articulating the differences between the methods that the post office uses in delivering those two types of mail. Without testimony from a postal employee detailing such procedures, any findings made by this board would be premised on a substantial degree of speculation. We further note that the use of the return receipt aids this commission in ascertaining if and when its time-sensitive mailings have been received. We are thus disinclined to declare the use of the “return receipt” option dissatisfactory under § 31-321.

The claimant’s appeal is hereby reinstated. We will reschedule oral argument, complete with an opportunity for re-briefing, on those issues that were raised by the appellant in his initial appeal but not addressed by this board due to our previous dismissal of that petition for review.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

1 The Court also remanded the cases of Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999), and Kulig v. Crown Supermarket, 250 Conn. 603 (1999), to afford the respective claimants/plaintiffs the chance to establish that, through no fault of their own, they failed to receive notification of the relevant trial commissioners’ decisions within the ten-day § 31-301(a) appeal period. In each case, success would entitle the claimant to reinstate his or her appeal. BACK TO TEXT