Iannarone v. State of Connecticut Department of Mental Retardation

ROBIN L. WILSON, COMMISSIONER. The respondent has filed a Motion for Reconsideration from the August 4, 2000 decision of this board. The respondent requests that we reconsider our dismissal of the respondent’s cross appeal as not timely pursuant to § 31-301(a). In support of its motion, the respondent reiterates its argument that this board should follow Connecticut Practice Book rules, including § 61-8 which provides that an appellee may file a cross appeal “within ten days from the filing of the appeal.” Thus, the respondent requests that this board overrule Fortin v. State of Connecticut, 2 Conn. Workers’ Comp. Rev. Op. 33, 138 CRD-6-82 (1983).

In Fortin, supra, the claimant’s cross appeal was filed within ten days after the respondent had filed an appeal, but 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, and thus dismissed the cross appeal. The board specifically rejected the claimant’s argument that the Practice Book rules, 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).

We recognize that § 31-301(e) provides, in pertinent part: “The 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.” Sec. 31-301(e) (emphasis added). In the instant case, the respondent fails to appreciate that in contrast to the limited jurisdiction of this board, the Appellate Court’s subject matter jurisdiction is not affected by a late appeal. Rather, the Appellate Court is vested with the authority to allow a party to pursue a late appeal. Dowling v. Slotnik, 244 Conn. 781, 789 (1998). In Dowling, supra, the Supreme Court explained that even though an appeal was not filed with the Appellate Court within the twenty day appeal period provided in Practice Book § 4009(a), said time limit is not a “constitutionally or legislatively created condition precedent to the jurisdiction of the [appellate court].” Id. at 788 (citations omitted). In contrast, this board does not have subject matter jurisdiction over a late appeal. Cyr v. Domino’s Pizza, 45 Conn. App. 199, 202-3 (1997).

Accordingly, where a party fails to comply with the ten day time limit prescribed by § 31-301(a), and thus our subject matter jurisdiction is affected, this board is not at liberty to apply the Practice Book rules governing cross appeals to the Appellate Court.

Iannarone v. State of Connecticut Department of Mental Retardation

RULING ON MOTION FOR RECONSIDERATION