Kulig v. Crown Supermarket

The claimant was represented by John C. Lewis III, Esq., Brignole & Bush, L.L.C., 73 Wadsworth Street, Hartford, CT 06106.

The respondents were represented by James J. Dunham, Jr., Esq., Law Offices of Scott B. Clendaniel, 300 Windsor Street, P. O. Box 2138, Hartford, CT 06145-2138.

As directed by the Supreme Court of this State in Kulig v. Crown Supermarket, 250 Conn. 603 (1999), an evidentiary hearing concerning the claimant’s receipt of notice of the March 19, 1996 Finding and Dismissal of the Commissioner acting for the Sixth 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. Like the recent case of Schreck v. Stamford, 3322 CRB-7-96-4 (July 21, 2000) which was also decided today, 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 its opinions. The relevant history is as follows. The claimant originally petitioned for review from a March 19, 1996 decision of the Commissioner acting for the Sixth District, in which the trier concluded that she was not eligible for a scarring award under § 31-308(c) following compensable burns to her legs. The appeal was filed on May 2, 1996, well over one month after the trial commissioner’s decision was issued. Although the respondents’ counsel received notice of the trier’s decision on March 20, 1996, the claimant’s counsel alleged that he did not receive such notice until April 24, 1996.

This board dismissed the claimant’s appeal on the ground that the ten-day appeal period allowed by § 31-301(a) began running on March 19, 1996, the day the claimant was sent meaningful notice of the decision. Kulig v. Crown Supermarket, 3335 CRB-6-96-5 (Nov. 24, 1997). This board lacks jurisdiction over late petitions for review. We stated that we did not have the authority to overrule the decision of our Appellate Court in Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994)(appeal due by tenth day after date notice is sent, rather than date notice is received), “despite the claimant’s vehement protests that the Conaci standard ignores the reality that notice is not always received within ten days after it is mailed.” Kulig, supra. The claimant then appealed our dismissal order to the Appellate Court, whereupon the Supreme Court transferred the appeal to its docket pursuant to § 51-199(c) C.G.S. and Practice Book § 65-1.

In Kudlacz v. Lindberg Heat Treating Company, 250 Conn. 581 (1999), an opinion issued by the Court concurrently with its decision in Kulig, the Court held that “the ten day appeal period of § 31-301(a) is tolled when the aggrieved party 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.” Id., 590-91. Although the Kulig Court rejected the claimant’s plea to overrule Conaci, it held that, in accordance with Kudlacz, “the plaintiff is entitled to establish that: (1) through no fault of her own, she failed to receive notice of the commissioner’s decision within ten days of the date that she was sent such notice by the commissioner; and (2) the plaintiff’s petition for review of the commissioner’s decision was filed within ten days of the date that she received notice of that decision.” Id., 610. Accordingly, the case was remanded to this board “for further proceedings according to law.” Id.

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.2 Each party was given the opportunity to submit relevant documentation into the record, and two witnesses were sworn in: Jacek Smigelski, the attorney who had represented the claimant prior to the Supreme Court’s remand, and Darlene Taradeina, a paralegal who is employed by Attorney Smigelski. This board now makes the following factual findings, based on our assessment of the testimony and the documents that we administratively noticed during the proceedings:

Because it is undisputed that the district office mailed notice of the trier’s decision to the correct address on March 19, 1996, the respondents argue in their brief that we must now presume that said notice was actually received in a timely manner. They contend that the claimant’s introduction of a certified mail green card signed and dated April 24, 1996 is not enough to overcome this inference. Although there is caselaw that states, “When a statute . . . authorizes delivery by mail then depositing a letter with the post office in the specified manner . . . constitutes delivery to the defendant;” Tucker v. Connecticut Ins. Placement Facility, 192 Conn. 653, 660 (1984); we do not believe that this language should be taken out of context and applied here. See, e.g., Console v. Torchinsky, 97 Conn. 353, 356 (1922) (plaintiff creditor not allowed to take advantage of fact that defendant debtor was “lulled into security” by the presumption of due delivery arising from mailing of correctly-addressed letter). The concerns expressed by our Supreme Court in Kulig, supra, and Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999), are incompatible with the application of such a presumption.

The Court stated in Kudlacz, “In light of the obvious unfairness inherent in depriving an aggrieved party of the right to appeal the commissioner’s decision solely because of a failure of notice beyond that party’s control, we will not lightly presume that the legislature intended such a result.” Id., 588. “It is one thing to conclude that an aggrieved party has forfeited the right to such review by failing to take appropriate steps to perfect that right; it is another matter entirely, however, to deprive a party of the right to appeal solely because of a failure of notice for which that party bears no responsibility.” Id., 589. The Court’s directive was thus to allow the aggrieved party an opportunity to establish that, through no fault of his own, he did not receive notice of the trier’s decision within ten days of the date it was sent. We must apply that directive in the setting of the real world, where a private citizen would be hard-pressed to document the actions or omissions of the United States Postal Service. “Neither an agency nor the public can wield control over the delivery schedule of the post office. The most either can do . . . is to place [its mail] in the hands of the post office.” Bittle v. Commissioner of Social Services, 243 Conn. 509, 515 (1999).

By imposing a presumption that the post office timely delivers all properly mailed letters, we would place this claimant in the position of having to prove not only that she was not affirmatively responsible for the late delivery, but that the post office was somehow culpable for the delay. This would seem to require, at minimum, the establishment of a chain of custody for the certified letter in question, as well as a list of the postal service’s delivery attempts. As a practical matter, it would be nearly impossible for the claimant to accomplish this task several years after the fact, as the post office only keeps certified mailing records for two years. See Postal Operations Manual, § 812.24 (Aug. 1, 1996 Revision); 39 C.F.R. § 211.2 (Postal Operations Manual is part of official regulations of United States Postal Service). Moreover, the introduction of such records into evidence still might not explain why a delivery attempt was unsuccessful, or whether the claimant was in fact notified that there was a certified letter waiting for her at the post office.

In our view, the due process concerns of the Supreme Court are best addressed in this case by requiring the claimant to prove only that she deserves no blame for failing to receive timely notice of the trier’s decision. Proof regarding the events that occurred during those moments in which postal employees were processing this article of mail would be extremely difficult to obtain, even if certified mail records were still available. We would vitiate the practical effect of Kudlacz if we were to assign to the claimant the heavy burden of demonstrating that the post office caused the delay in delivery, as we would be placing a party in the untenable position of having to account for everyone else’s behavior as well its own. It is unlikely that most parties would be able to meet such a burden unless the factual circumstances were ideal.

As we have found the testimony of Attorney Smigelski and Darlene Taradeina to be credible, we hold that the claimant has demonstrated that it was neither her nor her counsel’s fault that notice of the commissioner’s decision was not received within ten days of the date it was sent. Based upon the date on the green card, we find that actual notice was first received on April 24, 1996. The filing of the petition for review on May 2, 1996 was therefore timely, and the claimant’s appeal must be reinstated. We will reschedule oral argument, complete with an opportunity for re-briefing, on those issues that were raised by the appellant in her initial appeal, but not addressed by this board due to our previous dismissal of her 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 Schreck v. Stamford, 250 Conn. 592 (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. As noted at the outset of this opinion, this board today issued a decision in Schreck. BACK TO TEXT

2 The respondents filed a Motion to Dismiss the claimant’s appeal on the ground that she failed to file an Appellant’s brief. The claimant explained at oral argument that, as the issue before this board is mainly an evidentiary matter, she did not intend to file a brief. Although this board has the discretion to dismiss an appellant’s petition for review for failing to file a timely brief pursuant to Practice Book § 85-1; see, e.g., Mendoza v. Raposo, 15 Conn. Workers’ Comp. Rev. Op. 155, 157-58, 2172 CRB-7-94-10 (Jan. 26, 1996); we agree that it would not be appropriate to do so in this case. Unlike the matters that routinely confront this board, the issue today is essentially factual, and we must make our decision based on the evidence presented by the parties. As such, the filing of an appellate brief would not likely provide this board or the respondents with vital information. Consequently, we deny the Motion to Dismiss. BACK TO TEXT