Iannarone v. State of Connecticut/Department of Mental Retardation

The claimant was represented by Richard Jacobs, Esq., Law Office of Jacobs, Jacobs & Shannon, 265 Orange Street, New Haven, CT 06510.

The respondent was represented by Michael Belzer, Esq., Assistant Attorney General, P. O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.

This Petition for Review from the October 14, 1999 Finding and Award of the Commissioner acting for the Fifth District was heard March 10, 2000 before a Compensation Review Board panel consisting of Commissioner Robin L. Wilson and Commissioners Leonard S. Paoletta and Stephen B. Delaney.

DISMISSAL ORDER

ROBIN L. WILSON, COMMISSIONER. The claimant filed a timely petition for review from the October 14, 1999 Finding and Award of the trial commissioner acting for the Fifth District. Subsequently, the respondent filed a cross appeal on November 1, 1999, and the claimant filed a Motion to Dismiss on the basis that the respondent’s appeal was not timely. The sole issue to be addressed is whether the respondent’s cross appeal is timely.

The respondent’s petition for review was filed on November 1, 1999, over ten days after the trial commissioner’s Finding and Award had been mailed to the parties on October 14, 1999 via certified mail, return receipt requested, as indicated by the certified mail receipts contained in the record. These receipts indicate that the Finding and Award was delivered to both parties on October 15, 1999. The respondent’s appeal filed on November 1, 1999 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).

The respondent’s cross appeal was filed within ten days of the filing of the claimant’s appeal on October 22, 1999, and thus the respondent contends that it should be deemed timely based upon § 61-8 of the Connecticut Practice Book. Section 61-8 provides that an appellee may file a cross appeal “within ten days from the filing of the appeal.” The respondent relies upon Sager v. GAB Business Services, Inc., 11 Conn. App. 693 (1987). In that decision, the court held that the review division’s1 dismissal of the defendant’s appeal for late filing of reasons of appeal under § 31-301-2 was “in excess of the review division’s statutory authority as set forth in General Statutes § 31-301.” Id. at 698. The court explained that neither § 31-301 nor § 31-301-2 provide for the dismissal of an appeal due to the late filing of reasons of appeal, but that “a dismissal is authorized by the provision in § 31-301(a) [now § 31-301(e)] that ‘[t]he procedure in appealing from an award of the compensation commissioner shall be the same as the procedure employed in an appeal from the superior court to the to the supreme court, where applicable.’” Id. at 696-97. The court in Sager, supra, applied the Connecticut Practice Book rules, and concluded that “where an appellee fails to move for dismissal within the ten day period, the motion to dismiss comes too late and the defect is deemed waived.” Id. at 697 (citations omitted).

Unlike the facts of Sager, which involved appeal procedure, the instant case involves subject matter jurisdiction. We remind the parties that § 31-301(e) provides: “The procedure in appealing from an award of the commissioner shall be the same as the procedure employed in an appeal from the Superior Court to the Supreme Court, where applicable.” § 31-301(e) (emphasis added). It has repeatedly been held that a party must file its appeal within the prescribed time period in order for this board to have subject matter jurisdiction over the appeal. Cyr v. Domino’s Pizza, 45 Conn. App. 199, 203 (1997) citing Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717 (1995).

The decision of Fortin v. State of Connecticut, 2 Conn. Workers’ Comp. Rev. Op. 33, 138 CRD-6-82 (1983) is directly on point. In Fortin, the claimant filed a cross appeal within ten days after the respondent had filed an appeal, but the claimant’s cross appeal was not filed within ten days of the trial commissioner’s decision. The board held that the claimant’s cross appeal did not comply with the time requirements of § 31-301 and § 31-301-1. The board specifically rejected the claimant’s argument that court procedures, which allow a party to file a cross appeal within ten days of the filing of an original appeal, should apply. The board explained that under § 31-301 a workers’ compensation appeal “is distinct from a ‘civil action’ and the Legislature so intended.” Id. at 34 (citations omitted).

Based upon the above, we conclude that the respondent’s cross appeal was not filed within the time limits required by § 31-301(a) and we thus must dismiss it as untimely.

The respondent’s appeal is dismissed.

Commissioners Stephen B. Delaney and Leonard S. Paoletta concur.

1 At that time, the statute used the term the Compensation Review Division, which was later changed to Compensation Review Board. BACK TO TEXT