Pelletier v. R & L Acoustics, Inc.

The claimant was represented by Bruce E. Newman, Esq., Newman, Creed & Associates, 99 North Street, P. O. Box 575, Bristol, CT 06010.

The respondents were represented by Jane Carlozzi, Esq., Nuzzo & Roberts, One Town Center, P. O. Box 747, Cheshire, CT 06410.

This Petition for Review from the November 15, 2002 Finding and Dismissal of the Commissioner acting for the Sixth District was heard June 20, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 15, 2002 Finding and Dismissal of the Commissioner acting for the Sixth District. He contends on appeal that the trial commissioner erred by dismissing his claim for temporary total disability benefits. The respondents have also filed a Motion to Dismiss the appeal on the ground that the claimant’s petition for review was filed in an untimely manner, to which the claimant objects, having preceded the respondents’ motion with his own late filing request. We grant the respondents’ motion, and dismiss the claimant’s appeal.

We must begin by discussing the jurisdictional issue of the untimely petition for review. The relevant language of § 31-301(a) C.G.S. states, “At any time within twenty days after entry of an award by the commissioner, . . . either party may appeal therefrom to the Compensation Review Board . . . .” Notice of the trial commissioner’s Finding and Dismissal was mailed to counsel for all parties via certified mail on Friday, November 15, 2002, as per the certifications appended to the original decision. The postal receipts indicate that the office of claimant’s counsel received the decision on November 18, 2002, a fact which the claimant does not dispute. The claimant’s petition for review was filed on Monday, December 9, 2002, more than twenty days after notice was sent. Under the strict language of § 31-301(a), the claimant’s appeal petition was due on or before Thursday, December 5, 2002.

The claimant seeks relief from the strict application of the law, however, on the ground that counsel’s office “through inadvertence, mistake and/or neglect” appended the commissioner’s decision to a set of documents that belonged to another case. In his objection, counsel also explains that one of the firm’s two partners was called to active military service in September, which has presumably resulted in the overburdening of the firm’s other attorney. Counsel contends that procedural due process would be denied if the claimant were deprived of his right to appeal under these circumstances. We disagree. Pursuant to Schreck v. Stamford, 250 Conn. 592 (1999), in cases where a party is represented by counsel, the statutory appeal period commences running on the date that notice is sent to said counsel. Id., 598-601. Further, the appeal period is tolled only when a party seeking to appeal establishes that, through no fault of its own, notice of the commissioner’s decision was not received within twenty days of the date it was sent. Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 590-91 (1999). Notice was in fact received here three days after the decision was mailed, and any delay in processing that notice was due to the “inadvertence, mistake or neglect” of counsel’s office. This is not a situation in which the appeal period could be extended under Kudlacz. Therefore, the claimant’s petition for review must be dismissed.

We take this opportunity to note, however, that if we were to reach the merits of the claimant’s appeal, we would have no ground upon which to reverse the trial commissioner’s decision. The claimant seeks to reverse what is ultimately a credibility determination by the trial commissioner regarding whether or not the claimant can be considered totally disabled under § 31-307 C.G.S. or pursuant to Osterlund v. State, 135 Conn. 498 (1949). Figueiredo v. Barridon Corp., 4442 CRB-1-01-9 (Aug. 16, 2002); Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002). This board does not have the power to overturn a trier’s decision regarding the relative weight to be given to competing testimony and documentary evidence on review. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

Although there is some evidence to support the notion that the claimant is totally disabled, namely the testimony of the claimant, his treating physician and one of the vocational experts who testified in this case, there is also evidence supporting the notion that the claimant has a light duty work capacity, namely the opinion of Dr. Skolnick and the testimony of another vocational evaluator. The commissioner specifically found that the latter was more persuasive than the former. Findings, ¶¶ A-G. It is not the role of this board to draw alternate inferences on appeal, and we would have no basis upon which to reverse the decision of the trial commissioner. Therefore, the merits of this appeal would not have been successful.