Ellis v. State of Connecticut Department of Developmental Services-West Region (STS)

The claimant was previously represented at the trial level by Jonathan H. Dodd, Esq., Dodd, Lessack, Dalton & Dodd, LLC, 700 West Johnson Avenue, Cheshire, CT 06410.

The respondent was represented by Lisa Guttenberg Weiss, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120. However, the issue on appeal did not involve the respondent and therefore they did not file a brief or appear at oral argument.

This Petition for Review from the May 24, 2007 Finding and Award of the Commissioner acting for the Fifth District was heard April 25, 2008 before a Compensation Review Board panel consisting of Commissioners Scott A. Barton, Peter C. Mlynarczyk, and Jack R. Goldberg.

OPINION

SCOTT A BARTON, COMMISSIONER. The instant matter was heard by the Compensation Review Board on April 25, 2008. The file was calendared for oral argument for the purpose of permitting the appellant an opportunity to show cause why her claim should not be dismissed for failure to file a timely appeal to the Compensation Review Board pursuant to § 31-301(a) C.G.S. or for failure to prosecute with due diligence pursuant to Practice Book § 85-1.

The following background information is pertinent to our review. On November 22, 2004, the claimant entered into an Agreement/Stipulation to settle on a full and final basis her claims against the respondent resulting from injuries sustained on February 20, 2000, July 10, 2000, and July 9, 2001 in exchange for the payment of $15,000. During the course of the settlement negotiations, the claimant was represented by Attorney Jonathan Dodd, who articulated the parameters of the settlement to her in his correspondence of October 25, 2004, “explaining, among other things, that attorney’s fees of $3,000 and costs of $202.78 would be deducted from the gross settlement proceeds and that the claimant would net $5,898.61.”1 Appellee’s Brief, p. 1 and Exhibit A.

For reasons unknown, the administrator, GAB Robins, issued payment directly to the claimant, ostensibly some time in February of 2005. ClaimantAppellant’s Brief, p. 2, Appellee’s Brief, p. 2. According to Attorney Dodd (and conceded by the claimant), the claimant never paid the attorney’s fees or costs, and the matter ultimately proceeded to a preformal hearing on May 14, 2007. Despite having received notice of the hearing, which contained specific instructions that all parties were to attend, the claimant failed to appear. Absent testimony from the parties, the Agreement/ Stipulation of November 22, 2004 was entered into evidence and attached to the trial commissioner’s Finding and Award of May 24, 2007.

The claimant filed an untimely Petition for Review on July 3, 2007; forty (40) days after the trial commissioner had issued his Finding and Award on May 24, 2007. The claimant then failed to file Reasons of Appeal or a motion for an extension of time in which to submit Reasons of Appeal. The claimant did eventually file a brief on February 22, 2008, in which she disputed the trial commissioner’s award of attorneys’ fees and costs to the law firm of Dodd, Lessack, Dalton & Dodd, LLC, arguing that Attorney Dodd had indicated to her in a telephone conversation that he would “recoup” the money directly from the insurance company (Claimant-Appellant’s Brief, p. 1), and she should not be expected to pay him some two years after the fact. The claimant did not attend oral argument or seek to postpone the hearing on this appeal.2

The statutory time limits for filing a Petition for Review are set out in § 31-301(a) C.G.S., which states that “[a]t any time within twenty days after entry of an award by the commissioner . . . either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner . . . an appeal petition. . . .” (Emphasis added). Both this board and the Connecticut appellate courts have repeatedly held that the appealing party must file its appeal within the prescribed time period in order for this board to have subject matter jurisdiction over the appeal. Kudlacz v. Lindberg Heat Treating Company, 49 Conn. App. 1 (1998); Conaci v. Hartford Hospital, 36 Conn. App. 298, 303-304 (1994); Cioffi v. Trumbull Marriot, 15 Conn. Workers’ Comp. Rev. Op. 297, 2209 CRB4-94-11 (June 20, 1996).

We have reviewed the claimant’s narrative concerning the alleged difficulties she encountered in obtaining the paperwork necessary to the filing of an appeal. However, we do not find that the reasons for the delay proffered by the claimant are particularly compelling or rise to the level where they posed significant hardship. Thus, in light of the fact that the claimant did not submit her Petition for Review until forty (40) days after the trial commissioner issued his Finding and Award, we conclude that the filing of the Petition for Review was not in accordance with the time constraints imposed by § 31-301(a) and dismiss the claim for lack of subject matter jurisdiction.

Moreover, as previously mentioned herein, the claimant failed to file her Reasons of Appeal in violation of § 31-301-2 C.G.S., which states that, “[W]ithin ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal.” The claimant also never filed a motion for an extension of time in which to submit her Reasons of Appeal. In addition, while the claimant did subsequently provide a doctor’s note attesting to her inability to attend the oral argument before this board scheduled on April 25, 2008, this note was provided eleven days after the fact and did not suggest any reason why the claimant could not have requested a continuance prior to the date of the oral argument. Thus, even if jurisdiction existed, the claimant’s failure to file the required supporting documentation, request extensions where appropriate, or attend hearings in the prosecution of this appeal would most likely result in our dismissal of the appeal on the basis of the appellant’s failure to prosecute her claim with proper diligence. See Practice Book § 851; State of Connecticut v. Todd Rose, 3896 CRB-2-98-9 (March 3, 1999); Reynolds v. Atlantic Foods, 3676 CRB-7-97-9 (October 20, 1998).

Accordingly, the claimant-appellant’s appeal is dismissed.

Commissioners Peter C. Mlynarczyk and Jack R. Goldberg concur in this decision.

1 The claimant’s total proceeds from the settlement were $11,797.22. However, the file contained a lien from the Department of Administrative Services entitling DAS to fifty (50%) percent of any settlement proceeds, thereby reducing the claimant’s share to $5,898.61. BACK TO TEXT

2 We note that on May 5, 2008, the claimant submitted an out-of-work slip from her physician indicating that she had been unable to attend the hearing scheduled for April 25, 2008 due to an unspecified illness. To the extent that the claimant intended this note to serve as either a Motion to Reopen or Motion for Reconsideration, the motion is denied. BACK TO TEXT