Opinion
CASE NO. 550 CRD-7-87
DECEMBER 1, 1988
The claimant was represented by James L. Rapaport, Esq.
The respondent-employer was unrepresented and did not appear at the trial level but on appeal was represented by Daniel Benjamin, Esq.
This Petition for Review from the December 29, 1986 Finding and Award of the Commissioner for the Seventh District was heard May 20, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Rhoda Loeb and Andrew Denuzze.
OPINION
On October 4, 1985 claimant suffered a compensable injury to his right knee while removing tree stumps with a gasoline-powered chain saw. The Seventh District Commissioner so found in his December 29, 1986 Finding and Award. No appeal was filed by the employer-respondent before the expiration of the ten day period provided in Sec. 31-300 and 31-301, C.G.S. However, the employer filed a Petition for Review January 15, 1987 seventeen days after the Finding and Award. He also then presented motions for Extension of Time to File Motion to Correct and Extension of Time to File Reasons of Appeal. Both those motions were granted. However, his third Motion to Present Additional Evidence filed that same day was denied by the trial Commissioner.
Claimant-appellee moved to dismiss on March 3, 1988 because pleadings filed by the employer January 15, 1987 were filed more than ten days after the Finding and Award. Respondent objected to claimant's motion citing Sager v. GAB Business Services, Inc., 11 Conn. App. 693 (1987). Sager involved an appellant who failed to file Reasons of Appeal within ten days as required by Administrative Regulations Sec. 31-301-2. The Appellate Court there held that the procedural defect involved in appellant's failure to comply with the time requirement of Sec. 31-301-2 was waived as the appellee had not filed its motion to dismiss within ten days of the defect. Sager declared absent a specific Compensation Review Division rule mandating dismissal for failing to file timely reasons of appeal, Sec. 31-301(a), C.G.S. incorporated Supreme Court Rules by reference. Practice Book Sec. 4056 was therefore applicable.
Sec. 31-301(a), C.G.S. provides in pertinent part: ". . . . The procedure in appealing from an award of the compensation commissioner shall be the same as the procedure employed in an appeal from the superior court to the supreme court, where applicable. . ."
But the Sager appellants' defect was a failure to comply with a C.R.D. rule. In the present case, the appellant's failure concerns a statutory default. Section 31-300, C.G.S. states: "If no appeal from his 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". Section 31-301(a), C.G.S. states: "At any time within ten days after entry of such award by the commissioner, . . . either party may appeal therefrom to the compensation review division. . .".
As we have recently been reminded, Castro v. Viera, 207 Conn. 420 (1988), the Workers' Compensation Commission and its Compensation Review Division, as creatures of statute, possess only the limited jurisdiction granted by the legislature. Thus, there can be no appellate jurisdiction to review a finding and award unless the appeal is taken within the ten days prescribed by such statutes. The parties cannot confer jurisdiction by waiver, Chzrislonk v. New York, New Haven Hartford R.R., 101 Conn. 356 (1924).
Even if we were to look to the Practice Book Rules for the Supreme Court as dictated by Sager, we would not find differently. Practice Book Sec. 4009 concerns the time period for appeal and states that such time may be extended in accordance with the provisions of Sec. 4040. Section 4040 permits a potential appellant to request extension of time from the trial judge to file an appeal. Such motion must be filed before the expiration date of the original appeal period. The courts have ruled that appeal period time limitations must be observed and such times may be extended only through strict compliance with these rules, State v. Stead, 186 Conn. 222, 226-228 (1982). The appellant here filed no motion to extend the time to file his appeal. Nor did he move to open the award or file additional evidence before the expiration of the statutory time period for the appeal. Consequently, his Petition for Review must be dismissed. Since the Motion to Correct the Finding and the Reasons of Appeal pleadings are pendent upon the Petition for Review, they also must be denied.
There remains appellant's Motion to Present Additional Evidence filed January 15 and denied by the trial Commission January 20, 1987. The respondent filed a second Petition for Review on January 27 from the denial of that motion. Under Sec. 31-315, C.G.S., the trial Commissioner's award was subject to modification if circumstances changed since the award was made. The commissioner had the same power to open and modify the award as any court in the state has to open and modify a judgment. Even if we treat respondent's Motion to Present Additional Evidence as seeking to open and modify the judgment, the trial Commissioner acted well within his powers when he denied the motion. The motion sought to present evidence that the claimant was an independent contractor rather than an employee. The motion as presented offers no indication that such new evidence was really new or that it was undiscoverable with due diligence at the time of the original hearing. On its face the January 15 pleading simply sought to present cumulative evidence. As such it failed to satisfy the requirements of Sec. 31-315.
Therefore, both the January 15 and the January 27, 1987 Petitions for Review are denied. The appeal is dismissed in its entirety.
Commissioners Rhoda Loeb and Andrew Denuzze concur.