Murphy v. J.C. Penney Regional Catalog Center

The claimant was represented by Joseph L. Dix, Esq., Law Offices of Donald E. Weisman, 59 Hungerford Street, Hartford, CT 06106.

The respondents were represented by Marian Yun, Esq., Law Offices of Rosenbaum & Vollono, 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the July 26, 2005 Ruling on Motion To ReOpen Stipulation Approved September 1, 2000 of the Commissioner acting for the Eighth District was heard February 24, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the July 26, 2005 ruling of the Commissioner acting for the Eighth District. In his July 26, 2005 Ruling Re: Motion To Reopen Stipulation Approved September 1, 2000 the commissioner denied the claimant’s request to reopen a stipulation approved September 1, 2000.

The pertinent facts are as follows. The claimant contended she sustained an injury to her head on or about February 9, 2000. Proceedings were commenced and the claimant was represented by Attorney Charles Rosenzweig.1 Ultimately the claimant and the respondents entered into a stipulated agreement fully resolving disputed issues. The stipulation was pre-approved by Commissioner A. Thomas White, Jr., on August 17, 2000. Commissioner White canvassed the claimant as to her understanding of the legal consequences of fully and finally settling her claim against the respondents. The claimant and her attorney signed a “Stipulation and What It Means Form.” The claimant and Attorney Rosenzweig also signed a Stipulation Questionnaire. Both documents were submitted to Commissioner White and on September 1, 2000, a fully executed Award by Stipulation was approved by Commissioner White.

On October 16, 2001 the claimant requested that the Award by Stipulation be reopened on the basis of fraud, mistake and misrepresentation. She contends that her attorney intimidated here and coerced her into signing the stipulation. The claimant sought to reopen the Award by Stipulation upon learning of Attorney Rosenzweig’s arrest on drug charges. The claimant testified that she filed a complaint with the Grievance Committee. Attorney Rosenzweig did not respond to the complaint and the Grievance Committee entered a finding of probable cause. On May 12, 2003 Attorney Rosenzweig resigned from the practice of law.

In testimony before the commissioner, the claimant argued that Attorney Rosenzweig coerced her into signing the stipulation by threatening to drop her as a client if she did not agree to sign the stipulation. The claimant testified that she is a high school graduate for whom the ability to read was not an issue. The commissioner denied the claimant’s Motion to Reopen and the claimant took this appeal.

We note the trial commissioner’s ruling was issued July 26, 2005. The claimant’s appeal was filed August 23, 2005. Section 31-301(a)2 provides that appeals to the Compensation Review Board must be filed within twenty days after the commissioner’s decision. Following the filing of the claimant’s appeal, the respondents filed a Motion To Dismiss on the basis of the late appellate filing. Failure to comply with the time constraints set out in § 31-301(a) deprives this board of jurisdiction to consider the appeal on its merits. See Mursko v. R & K Spero, 4159 CRB-3-99-12 (November 30, 2000).

The appellant argues that the calculation of the period by which an appeal must be filed should be triggered by the date it is received. Case law on this point does not support the appellant’s argument. In Kulig v. Crown Supermarket, 250 Conn. 603 (1999) the Supreme Court held the ten day appeal period runs from the time the decision is sent unless appellant establishes that, through no fault of its own, the appeal was not received within the ten day appeal period. We concede that the legislature has extended the time for the filing of appeals with the Compensation Review Board since the Supreme Court rendered its opinion in Kulig.3 We conclude, however, the rationale of the Kulig court is applicable, i.e. that an appellant who files a late appeal must establish that the commissioner’s decision was not received within the appeal period. The appellant concedes that the commissioner’s ruling was received on July 30, 2003, well within the time for filing an appeal. We therefore are compelled to grant the respondents’ Motion To Dismiss.

We note, however, were we to consider the claimant’s appeal on the merits it is doubtful if we would sustain the appeal. The commissioner’s ruling in the instant matter was directly dependent upon the weight and credibility he assigned to the evidence presented. We are loathe to disturb conclusions so based. See e.g., Bonner v. Liberty Home Care Agency, 4945 CRB-6-05-5 (May 12, 2006).

We therefore grant the respondents’ Motion to Dismiss. The claimant’s appeal from the July 26, 2005 ruling of the Commissioner acting for the Eighth District denying the claimant’s Motion To Reopen Stipulation Approved September 1, 2000 is dismissed.

Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur.

At any time within twenty days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties. BACK TO TEXT

3 Public Act 01-22 extended from ten to twenty days the time for filing appeals with the Compensation Review Board. BACK TO TEXT