Mason v. Dale Construction, Inc.

The claimant was represented by Suzanne D’Orsi Koetsch, Esq., Harris & Harris Attorneys at Law, 11 Belden Street, Second Floor, Norwalk, CT 06850-3347.

The respondents were represented by David Weil, Esq., Nuzzo & Roberts, One Tower Center, P.O. Box 747, Cheshire, CT 06410.

This Petition for Review from the December 7, 2001 Finding and Dismissal of the Commissioner acting for the Third District was heard November 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. A petition for review has been filed on behalf of the claimant from the December 7, 2001 Finding and Dismissal of the Commissioner acting for the Third District. The trier therein found that the claimant was not an employee of the respondent Dale Construction, Inc., on November 4, 1999, but rather an independent contractor, and therefore dismissed his claim for benefits. Shortly before that decision was issued, on November 29, 2001, the claimant passed away. The claimant’s attorney filed a petition for review in order to protect the appeal rights of the claimant’s potential estate. On January 16, 2002, this board allotted the claimant 90 additional days to file Reasons of Appeal, in the event an administrator was appointed to represent the estate. No Reasons of Appeal were filed. On May 16, 2002, the respondents filed a Motion to Dismiss the instant petition for review, citing untimely Reasons of Appeal under Admin. Reg. § 31-301-2. At the time of the November 22, 2002 oral argument on that motion, no probate proceedings were pending and no estate had been created.

Pursuant to § 45a-330 C.G.S., “Administration of the estate of any person shall not be granted, nor shall the will of any person be admitted to probate, after ten years from his decease, unless the Court of Probate upon written petition and after public notice and hearing finds that administration of such estate ought to be granted, or that such will should be admitted to probate . . . .” Given this lengthy statute of limitations for commencing an action in the probate court on behalf of a deceased individual, we cannot conclusively state that those who would represent the claimant’s interests have failed to avail themselves of their rights on appeal, thereby entitling the respondents to a dismissal of the instant petition for review with prejudice. As the claimant’s trial attorney1 has noted, her firm lacks the needed authority to proceed further on appeal, nor could it obtain such permission given the absence of an estate.

At this time, no record beyond the petition for review can currently be created, given the absence of a properly-appointed representative for the claimant. Having nothing substantive to review, our only choice is to dismiss the instant matter. See McCarthy v. AT&T Communications, Inc., 3689 CRB-6-97-9 (Aug. 7, 1998) (appellant’s failure to file necessary documents gives CRB discretion to dismiss appeal). We do so without prejudice, however, against any rights that the now-inchoate estate may have to pursue this appeal should its administration be commenced in probate court. The remedial purpose of the act requires that it be construed generously to accomplish that purpose. Matey v. Dember, 256 Conn. 456, 485 (2001); Driscoll v. General Nutrition Corp., 252 Conn. 215, 220 (2000). To dismiss this appeal with prejudice would be inappropriate in this context, as we would be isolating the admittedly important concern of achieving resolution in the administration of compensation claims and placing that concern above all other considerations. We decline to take that step, nor would we have clear authority to do so, given the impossibility of providing meaningful notice of the December 7, 2001 decision to the claimant’s not-yet-extant estate. See Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 588-89 (1999) (desire to quickly resolve compensation claims does not trump the right of an aggrieved party to obtain meaningful review; where party has, through no fault of its own, failed to receive notice of trier’s adverse decision, appeal right should not be forfeited).

The appeal is thus dismissed, but without prejudice against the rights of a possible future estate administrator to later reopen the petition for review.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.

1 We commend counsel for attending these proceedings and for endeavoring to ensure that the deceased claimant’s appeal rights are protected. BACK TO TEXT