Williams v. Merestone Construction

The claimant did not appear at oral argument, and appeared pro se at the trial level.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

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

This Petition for Review from the September 6, 2001 Finding and Dismissal of the Commissioner acting for the Fourth District was heard on March 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Stephen B. Delaney.

DISMISSAL ORDER

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has filed a petition for review from the September 6, 2001 Finding and Dismissal of the Commissioner acting for the Fourth District. The claimant filed his petition for review on September 21, 2001, which is more than ten days after the trial commissioner’s decision was issued and is thus untimely under § 31-301(a). The claimant also filed a Motion to Correct on September 21, 2001 which is within the two week period allowed under § 31-301-4. The claimant failed to appear at oral argument before this board, and has not filed Reasons of Appeal or a brief. The respondents have accordingly moved to dismiss the claimant’s appeal.

The claimant does not allege that he failed to receive notice of the trier’s decision within the ten-day appeal period of § 31-301(a), but rather acknowledges in his Motion to Correct that he received the trial commissioner’s decision on September 8, 2001. In Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (Jan. 2, 2002) we explained that we had jurisdiction to consider a timely appeal from the denial of a Motion to Correct where the Motion to Correct was filed on the 11th day after the issuance of the trial commissioner’s decision, even though no appeal was filed within ten days of the trial commissioner’s decision. Here, in contrast, the claimant did not file an appeal from the denial of his Motion to Correct, but rather is attempting to appeal the legal issues which were heard and decided by the trial commissioner in his September 6, 2001 decision.

Although this board attempts to give as much leeway as possible to pro se claimants, some attempt must still be made to comply with our regulations governing appeals. Here, the claimant filed a Motion to Correct on September 21, 2001, which includes his legal arguments, and thus may be deemed to be his brief. See Drew v. Sears Roebuck & Co., 4400 CRB-7-01-5 (May 2, 2002). However, the claimant did not file a timely appeal from the denial of his Motion to Correct. Accordingly, we dismiss the claimant’s appeal as late. Moreover, the claimant did not file Reasons of Appeal, and did not appear at oral argument before this board. Accordingly, we also dismiss the appeal for failure to prosecute with due diligence under Practice Book § 85-1. See Soden v. Custom Bottles of CT, Inc., 3849 CRB-5-98-6 (March 3, 1999); Hyatt v. Ames Department Stores, Inc., 3533 CRB-6-97-2 (May 14, 1998).

Even if we were to consider the merits of the claimant’s appeal, we would affirm the trial commissioner’s decision. In his Motion to Correct, the claimant argues that either the Second Injury Fund or the respondent employer’s insurer should be required to pay a § 31-290a award which the employer has failed to pay. The claimant is simply attempting to relitigate these issues, which were fully addressed by the trial commissioner in his September 6, 2001 decision. Specifically, the trial commissioner found that the trial commissioner who had issued the § 31-290a award subsequently ruled in a Motion to Correct dated May 12, 1993 that the respondent insurer’s workers’ compensation policy did not include coverage for violations of § 31-290a, and that the insurer was not liable for the § 31-290a award. Findings, ¶¶ 17-20. That ruling was never appealed. Findings, ¶ 21. Additionally, the trial commissioner correctly found that neither § 31-293 nor § 31-355 requires that the Fund pay a § 31-290a claim where the employer or insurer fails to pay.1

Commissioners Amado J. Vargas and Stephen B. Delaney concur.

1 Section 31-355 specifically applies where an employer “fails or is unable to pay medical or surgical aid or hospital and nursing service required under this chapter or any type of compensation for disability, or both, whether for total or partial disability of a permanent or temporary nature, death benefit, funeral expense, or any adjustment in compensation required by this chapter….” The Fund’s liability under § 31-355 has been narrowly construed. See Aubertin v. Pacelli Bros., 12 Conn. Workers’ Comp. Rev. Op. 69, 1381 CRB-1-92-2 (Feb. 3, 1994). BACK TO TEXT