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Masko v. Town of Wallingford

CASE NO. 4076 CRB-08-99-07



JULY 11, 2000















The claimant was not represented at oral argument. Notice sent to James Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent was represented by David J. Weil, Esq., Nuzzo & Roberts, P. O. Box 747, Cheshire, CT 06410.

The Second Injury Fund was represented by J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 25, 1999 Finding and Award of the Commissioner acting for the Eighth District was heard February 25, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.


ROBIN L. WILSON, COMMISSIONER. The Second Injury Fund has petitioned for review from the June 25, 1999 Finding and Award of the Commissioner acting for the Eighth District. The Fund contends on appeal that the trier erred by finding that the respondent’s re-notification of its intent to pursue transfer of liability for the claimant’s case complied with the requirements of § 31-349(e). We disagree with the Fund’s allegation of error, and affirm the trial commissioner’s decision.

The claimant, Denise Masko, is the dependent widow of Andrew Masko, who suffered a compensable heart attack during the course of his employment with the town of Wallingford on May 10, 1993. See Masko v. Wallingford, 3225 CRB-6-95-12 (Jan. 24, 1997), aff’d, 48 Conn. App. 515 (1998). She is currently receiving benefits under § 31-306 C.G.S. On May 19, 1994, long before the issue of compensability in this case was settled, the respondent timely notified the custodian of the Second Injury Fund of its intent to pass along liability for this claim pursuant to § 31-349. Now that the causation issues have been resolved in the claimant’s favor, there is no dispute that the decedent suffered from a pre-existing medical condition that qualifies this case for transfer to the Fund. Rather, the pending issue is whether the respondent adequately complied with the re-notification provision that our legislature enacted as part of the P.A. 95-277 reform package that, among other things, closed the Fund’s doors to § 31-349 claims based on injuries occurring on or after July 1, 1995.

The amendment in question here has been codified as § 31-349(e), and provides as follows:

All claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995, of its intention to pursue transfer pursuant to the provisions of this section. No notification fee shall be required for notices submitted pursuant to this subsection. This subsection shall not apply to notices submitted prior to July 1, 1995, in response to the custodian’s request, issued on March 15, 1995, for voluntary resubmission of notices.

In the present matter, Madeleine Lemieux, an agent of the respondent, attested that she sent the Fund a letter dated Thursday, September 28, 1995 by certified mail notifying the custodian of the town’s intent to pursue transfer of the instant claim. The commissioner accepted her testimony that it was the custom of her office to send out letters the same day they were dated. However, the Fund did not receive the certified envelope containing the re-notification letter until Monday, October 2.

This superficially late notification was not the respondent’s fault, in the trier’s estimation. He found that, “Despite its usual custom, the post office did not deliver the September 28, 1995 letter to the Fund on September 29, 1995, nor did it deliver it on September 30, 1995 as the Fund did not accept mail on Saturdays.” Findings, ¶ 11. In his conclusions, the trier added that “the respondent placed the Second Injury Fund on timely notice of a Section 31-349(e) transfer claim. I find that the post office’s failure to make a timely delivery coupled with the Fund’s prior involvement in this matter should not absolve the Fund from claiming it did not receive proper notice.” Id., ¶ 15. The trier ordered the Fund to accept liability for transfer of the instant claim, from which judgment it has appealed. The Fund has also appealed the trier’s subsequent denial of its Motion to Correct certain findings of fact and legal conclusions.1

The respondent town of Wallingford is not the first party who has appeared before this board hoping to avert a ruling that its § 31-349(e) re-notification letter was received one day too late. Unfortunately, it seems that hundreds of such letters were received by the Fund on October 2, 1995. See Respondent’s Brief, 5. This board has consequently been confronted with this very circumstance in four recent cases, three of which have been decided in favor of the Fund. See Sanders v. GAE Services, 3481 CRB-5-96-11 (April 29, 1998); Wells-Tavalozzi v. Bickford’s Restaurant, 3736 CRB-6-97-12 (Dec. 22, 1998); Raynor v. United Technologies Corp., 3855 CRB-6-98-7 (Aug. 25, 1999).

The primary case in this line is Sanders. There, this board first addressed and rejected the argument that the October 2 notices should be considered timely based on statutes such as Practice Book § 4010 and § 12-39a C.G.S., which prevent a notice deadline from falling on a weekend or holiday. We observed that no similar exception authorizes largesse toward the due date in § 31-349(e), and then went on to add:

Indeed, one major feature of statutes such as Practice Book § 4010 and § 12-39a C.G.S. is that they concern general notice periods, where any date on the calendar could be the due date for the filing of a document. Section 31-349(e), on the other hand, specifically recites the date of October 1, 1995, which the legislature presumably recognized to be a Sunday when it passed the statute. By requiring a party to notify the custodian of its intent to pursue transfer prior to October 1, 1995, the legislature was in fact saying that the custodian of the Second Injury Fund had to be made known of said intent before October 1, 1995. See Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 238-39 (1947) (“notify” means to successfully make something known). As the Fund pointed out in its brief, the appellants have made no showing that notice could not have been given to the Fund by certified mail on Saturday, September 30, 1995. Our Supreme Court has held that “legal holiday” statutes extending the time limit for giving notice do not apply to Saturdays, as they are not legal holidays in and of themselves. Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 5 (1975) (secretary of Public Utilities Commission could have been served with notice of appeal on Saturday, January 18, 1975), distinguishing Lamberti v. Stamford, 131 Conn. 396 (1944).

Citing the Norwich Land case, supra, Sanders further explained that an appeal from an administrative agency is generally a pure figment of statute, and can only be pursued by strictly complying with the provisions that create the right of appeal. The board cited two Appellate Court decisions dismissing a pair of such appeals for lack of jurisdiction. Each appeal had been filed on a Monday, one day after the thirty-day appeal period had expired. Hanson v. Department of Income Maintenance, 10 Conn. App. 14 (1987); Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643 (1985). The statutory notice periods concerning Second Injury Fund transfers are akin to the agency appeal statutes in that they are substantively integral to § 31-349, and have been strictly construed by our courts. See Davis v. Norwich, 232 Conn. 311, 322 (1995); Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395-96 (1993). The CRB thus held that it would be inconsistent to read § 31-349(e) as providing an extra day upon which re-notification letters could have been delivered, again stressing that the insurer “did not introduce any proof that notice could not have been delivered on September 30, 1995.”

Perhaps prophetically, one of the panelists in Sanders dissented. Commissioner Metro felt that the respondents had adequately complied with the statutory mandate by mailing their re-notification letter via certified mail on September 26, 1995. As § 31-349(e) does not specifically say that the Fund must receive the notice prior to October 1, 1995, the dissenting commissioner thought that the mailing itself was sufficient. “[I]t seems patently unfair to require them to accept the denial of their transfer request because of the unpredictability of the delivery of certified mail by the United States Post Office.” This rationale was echoed by Commissioner Santos in his dissent in Raynor, supra, which also cited Tucker v. Connecticut Ins. Placement Facility, 192 Conn. 653 (1984) (statute authorizing delivery by mail is satisfied when letter is deposited with post office in specified manner and within specified time period), and urged the applicability of P.B. § 4010 on the common-sense ground that state agencies are not open on Sundays.

To date, the sole case in which a majority of CRB panelists have ruled that an ostensibly late re-notification letter satisfied § 31-349(e) is Correnti v. Grossman’s, Inc., 3858 CRB-8-98-7 (Aug. 31, 1999). There, an agent of the respondents attempted to personally deliver their re-notification letter to the custodian of the Second Injury Fund on September 29, 1995. The custodian refused to accept such service, despite having allowed personal delivery in the past. The respondents were then forced to send their letter by certified mail, which was done immediately, but was not received by the Fund until October 2, 1995. The CRB affirmed the trier’s determination that Sanders did not control the outcome of the case because representatives of the Fund had frustrated the respondents’ attempt at personal service of the letter, which would have substantially complied with § 31-349(e). In a concurring opinion, Commissioner Santos reiterated his position in Raynor as an alternate ground for affirmance.

It would be inaccurate to say that the circumstances of the instant case more closely resemble Correnti than they do Sanders. Still, there are two important differences between the landscape of this case and that of the Sanders scenario that strongly affect our disposition of this matter. First, the respondent has provided this board with additional evidence that was not available in Sanders—specifically, copies of the certified mail delivery receipt records from the post office from Friday, September 15, 1995 through Wednesday, October 11, 1995. There are separate sheets showing that certified parcels were delivered to the Treasurer’s office on every weekday spanning this time period with four exceptions: Wednesday, September 27; Friday, September 29; Friday, October 6; and Monday, October 9. There are also no records for any of the Saturdays or Sundays that occurred during this time period (a total of four separate weekends).

The Fund protests that these records should not have been admitted as a full exhibit because they were not reliably authenticated. As the post office submitted an affidavit stating that the official certified mailing records for 1995 had already been discarded, the Fund was left as the only party who could shed light on the details of its mail collection. See Exhibit 7. Given the importance that the Fund has assigned to the late receipt of re-notification letters in contesting its § 31-349 transfer claims, it would seem that it had plenty of incentive to keep reliable records of its certified mail deliveries during September and October 1995. The very existence of Exhibit 12 suggests that at least some of its employees were well aware of this necessity. Ironically, it is the Fund who now seeks to malign its own record-keeping procedures.

We observe that the Fund was in a unique position to produce the names of the most knowledgeable employees regarding its receipt of the re-notification letters. Interestingly, none of the three people the Fund recommended as deponents professed to have any idea as to whether the Fund was receiving mail on the weekend of September 30, 1995. See Respondent’s Exhibits 9, 10, 11. The individual who authenticated the postal records may not have had physical possession of those records until 1997; Deposition, 13; but, again, the Fund was the only entity who could have demonstrated the chain of custody as to this evidence. Knowing this, the trier was not required to place any blame upon the respondent for this alleged deficiency in its offer of proof.

Despite its defensive tactics at the formal hearing, the Second Injury Fund offered no concrete evidence to rebut the accuracy of these records. Under the Workers’ Compensation Act, this commission is not strictly bound by the common-law or statutory rules of evidence in attempting to gather relevant information under § 31-298. See, e.g., Nelson v. Deb’s Inc., 15 Conn. Workers’ Comp. Rev. Op. 274, 2228 CRB-3-94-12 (June 20, 1996) (trier had discretion to admit signed, undated document into evidence), aff’d, 45 Conn. App. 909 (1997) (per curiam), appeal dismissed, 244 Conn. 349 (1998). The trial commissioner was well within his rights to accept these records into evidence, and to cull from them the inference that the Fund was not in the habit of accepting certified mail on Saturdays. This finding is relevant because it suggests that the last day for timely performance under § 31-349(e)—Saturday, September 30—was indeed a day upon which the Fund did not receive mail. In fact, one could reasonably infer from these records that the Fund, for whatever reason, accepted and/or received no certified letters on Friday, September 29, either. See Findings, ¶ 11.

The second important difference between the backdrop of Sanders and the current situation is a recent Supreme Court decision, Bittle v. Commissioner of Social Services, 249 Conn. 503 (1999), that concerns the service of process in an administrative appeal pursuant to § 4-183(c) of the Uniform Administrative Procedure Act. The UAPA statute provides that, within 45 days after mailing or personal delivery of an agency’s final decision, a person appealing “shall serve a copy of the appeal on the agency that rendered the final decision . . . . Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested . . . or (2) personal service by a proper officer . . . .” In Bittle, the claimant mailed her appeal documents via certified mail on the forty-fourth day after the department’s decision was mailed, but they were not received until the forty-eighth day. The trial court dismissed the appeal for lack of subject matter jurisdiction, and the Appellate Court affirmed that dismissal.

After analyzing the language of § 4-183(c) and the legislative purpose behind various amendments to the UAPA that were intended to enhance the rights of the public, the Supreme Court overturned the lower court’s holding that § 4-183(c) requires the administrative agency or the attorney general to be in actual possession of the appeal papers before service may be deemed completed. The Court explained,

The option to have service made by mail was added to the statute to make appellate procedures simpler by taking advantage of the efficiency, cost-effectiveness and ease of using the mail. If we were to accept the department’s position, there would be a degree of unpredictability associated with the use of the mail that would, in practice, unduly complicate the use of the mail option provided by § 4-183(c)(1), because an appellant cannot effectively predict when the appeal papers actually will be delivered to the agency when the mail service is used. . . . [N]either an agency nor the public can wield control over the delivery schedule of the post office. The most either can do, when choosing the mail option for delivering documents, is to place those documents in the hands of the post office. . . . We are hesitant to leave the public’s right to have their claims addressed by the court, as statutorily allowed, to guesswork. . . . On the other hand, under typical circumstances, when the date for perfection of service is set at the postmark date, an appellant easily can calculate when the appeal papers must be deposited in the mail in accordance with § 4-183(c)(1) in order to preserve his or her right to appeal. This result makes the date of perfection certain for all appellants, and it uniformly gives each appellant forty-five days from the date of mailing, or the same from the date of personal delivery, of an agency’s decision to serve appeal documents, as provided by § 4-183(c).

Id., 514-16, 520. Thus, the appellant had legally perfected service by postmarking her appeal within the 45-day period, irrespective of the date it was received by the agency.

We recognize that the analogy between the instant case and Bittle is not watertight, as the legislature’s adoption of P.A. 95-277 was intended to limit the liability of the Second Injury Fund rather than to expand the rights of insurers to notify the Fund of transferable claims. See Cece v. Felix Industries, Inc., 248 Conn. 457, 463-64 (1999). However, this does not alter the fact that the only clearly authorized form of notice under § 31-349(e) is delivery by certified mail. The Supreme Court’s observations regarding the uncertainties of such mail delivery in Bittle are equally insightful here, and are inevitably relevant where notice via mail seems to be mandatory. If anything, it would make less sense to lay the risk of post office “misdeliveries, nondeliveries and tardy deliveries” at the feet of this respondent than it would to place such a risk upon an appellant under § 4-183(c)(1). See Bittle, supra, 515; see also Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 588 (1999) (aggrieved party should not be deprived of right to appeal trier’s decision solely because of failure of notice beyond party’s control).

Applying the cogent reasoning of Bittle to the facts found by the commissioner, we discern no error in his determination that the respondents satisfied § 31-349(e) by placing their certified re-notification letter into the custody of the post office on September 28, 1995. One could reasonably divine from Exhibit 12 that the State Treasurer’s office either did not accept or was not presented with any certified mail on September 29 or 30, which would have virtually eradicated the respondent’s window of opportunity to have its letter delivered before the first of October. As the respondent had no control over the actions of either the post office or the Fund, the most reasonable interpretation of the law is to give it credit for having complied to the best of its ability with § 31-349(e) by mailing the certified letter in accordance with the statutory direction. See Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 301 (1993). Thus, we affirm the decision of the trial commissioner.

Commissioner Leonard S. Paoletta concurs.

JOHN A. MASTROPIETRO, CHAIRMAN, CONCURRING. Though there are noteworthy differences between the evidence presented in this case and the record that was before this board in Sanders, supra, I view the opinion of the majority as essentially reversing the position that this board took in Sanders and the cases that followed its lead. Understandably, I am reluctant to disregard the precedential value of those decisions. However, I also recognize that the respondent’s legislatively-mandated reliance on the post office to deliver its certified letter placed it at the mercy of the same uncertainties that were addressed subsequent to Sanders by our Supreme Court in Bittle, supra, which ruling is most likely indicative of the pattern of thought that said Court would follow if it were confronted with the issue before us today. It would thus be improvident not to acknowledge the impact of Bittle on the instant case.

Let us be aware, though, that there are differences between § 31-349(e) and § 4-183(c)(1) that we should properly respect. For example, the relevant legislative policies behind the statutes diverge tremendously. A fair reading of Bittle shows that the Court’s analysis of § 4-183(c)(1) flows from the presumption that the legislature wished to establish an easy, cost-effective method by which the public could file administrative appeals. Unlike the changes to the Uniform Administrative Procedure Act that were reviewed in Bittle, P.A. 95-277 was plainly designed to curtail the financial liability of the party receiving notice—the Second Injury Fund—as quickly and efficiently as possible. Cece, supra; Coley v. Camden Associates, Inc., 243 Conn. 311, 320-21 (1997). This policy would not be furthered by an interpretation of § 31-349(e) that expands the definition of proper notice, even if only by one day. Traditionally, flexibility has not been the watchword in interpreting statutes that involve notice to the Second Injury Fund. See, e.g., Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395 (1993).

This distinction is observed only in the interest of thoroughness. Ultimately, I am resigned to conclude that the Supreme Court’s analysis in Bittle would carry the day given the facts here as well. Accordingly, I concur in the decision of the majority.

1 The Fund has, in addition, filed a Motion to Submit Additional Evidence in conjunction with this appeal. This evidence consists of a 1995 letter from the Fund’s counsel to a previous trial commissioner concerning the Fund’s agreement not to be a party to the litigation surrounding the compensability of this claim. We perceive no need to rule upon this motion, as we agree with the Fund that the level of its participation in earlier proceedings has no bearing on the timeliness of the respondent’s re-notification. Whether or not the Fund could be presumed to have had actual notice of the town’s intentions based on its involvement in the adjudication of the compensability issue, there is no allegation that the respondent submitted any sort of a notice of intent to pursue its claim for transfer in response to the custodian’s March 15, 1995 request. The provisions regarding notice to the Fund are construed too strictly for this board to infer that the Fund’s actions could be interpreted as the substantial equivalent of written notice by the respondent. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395-96 (1993). BACK TO TEXT


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