Opinion
CASE NO. 765 CRD-7-88-8
JUNE 29, 1989
The claimant was represented by Robert L. Hirtle, Esq. and Dean Kilbourne, Esq., both of Rogin, Nassau, Caplan, Lassman Hirtle.
The respondents were represented by Thomas H. Cotter, Esq., Cotter, Cotter Sohon.
This Petition for Review from the August 18, 1988 Finding and Order of the Commissioner for the Seventh District was heard January 27, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and Frank Verrilli.
OPINION
We here consider only Respondents' Motion to Dismiss. That Motion relies on (1) Claimant's failure to comply with Sec. 31-300 and 31-301, C.G.S. in that her appeal was not filed in the District Commissioner's office within the limited statutory period and (2) claimant's Reasons of Appeal were in violation of Reg. Sec. 31-301-2 in that they were not filed "Within ten days after the the appeal petition".
Actually, the tenth day after August 18, 1988 fell on Sunday, August 28, when the District office was closed so that the last filing day for the appeal would necessarily have been extended until Monday, August 29. Her Petition for Review was not received by the Seventh District until Tuesday, August Sec. 31-300 provides "If no appeal from his (the Commissioner's) decision is taken by either party within ten days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the superior court" Sec. 31-301(a) states "At any time within ten days after entry of such award . . . either party may appeal therefrom to the Compensation Review Division by filing in the office of the Commissioner . . . an appeal petition. . ."
The earliest C.R.D. decisions, Golob v State of Conn., 1 Comp Rev Op. 3, 4-CRD-2-79, (1980) and Lewicz v. State of Conn., 1 Comp. Rev. Op 5, 10-CRD-2-80, (1980) treated the late appeal problem. We then ruled that the statutorily limited period for appeal defined a jurisdictional prerequisite. It was not sufficient merely to mail the appeal within the period. In the exact words of the statute "filing in the office of the Commissioner" within the ten days was necessary. Otherwise the award became final after the passage of the ten days.
It is argued that the Appellate Court decision in Sager v. GAB Business Services, Inc., 11 Conn. App. 693 (1987) is authority for a different view, i.e. that the untimely appeal is simple a voidable appeal, not one void ab initio. It is only voidable if the opposing party moves to dismiss within the period permitted by the Supreme Court rules, and here the opponent's motion was not timely made. However, Sager concerned an untimely filing of Reasons of Appeal as measured by C.R.D. rules. The Sager appellant was not in violation of a statutory time requirement.
Earlier this year in our ruling, Kinney vs. State of Conn., 786 CRD-3-88-11 (4/6/89) we noted the case law, Castro v. Viera, 207 Conn. 420 (1988) and Pelletier v. Caron Pipe jacking, Inc. 13 Conn. App. 276 (1988) holding "it is settled law that the Commissioner's jurisdiction is confined by the Act and limited by its provisions", Gagnon v. United Aircraft Corporation, 159 Conn. 302, 305 (1970) cited in Castro, supra, 426. Castro ruled that the employment relationship as defined and encompassed within the statute was a prerequisite jurisdictional element that must exist in order for the Commissioner even to consider the case. Pelletier decided that the statutory one year limitation for filing a claim was also a mandatory provision of the act which must be satisfied before the Commissioner acquired any jurisdiction to hear any part of the case.
So, too, here we have statutory requirements which must be satisfied in order for C.R.D. appellate jurisdiction to lie. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created". Conn. Bank and Trust Co. v Commission on Human Rights and Opportunities, 202 Conn. 150, 154 (1987) citations omitted. Since claimant's appeal was filed late, it is dismissable [dismissible].
Given our holding on the first ground for dismissal it is not necessary to discuss the second issue. The Motion to Dismiss the appeal is granted and the Second District decision is affirmed.
Commissioners Andrew Denuzze and Frank Verrilli concur.