Opinion
CASE NO. 1545 CRB-8-92-11
DECEMBER 8, 1993
The claimant was represented by Edward T. Dodd, Jr., Esq.
The respondents were represented by Margaret E. Corrigan, Esq. and Michael McAuliffe, Esq. of Pomeranz, Drayton and Stabnick.
This Petition for Review from the October 23, 1992 Finding and Award of the Commissioner for the Eighth District was heard August 13, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners John A. Arcudi and Donald H. Doyle, Jr.
OPINION
The claimant seeks to dismiss the present appeal because the respondents failed to file their petition for review within the ten days as provided by Sec. 31-301(a) C.G.S. The Commissioner for the Eighth District issued a Finding and Award dated October 23, 1992. The respondent's Petition for Review, however, was not filed until November 3, 1992, the eleventh day following the Finding and Award.
The timeliness of the respondent's appeal implicates our subject matter jurisdiction over this appeal. Johnston v. ARA Services, Inc., 7 Conn. Workers' Comp. Rev. Op. 19, 765 CRD-7-88-8 (1989). In response to the claimant's motion to dismiss. the respondents contend that although the Finding and Award was issued on October 23, 1992, they did not have notice of the Finding and Award until October 26, 1992. Thus, the respondents assert that because they did not receive notice until October 26, 1992, they had ten days from the date of receipt, to file their appeal. Accordingly, respondents filed the Petition for Review on November 3, 1992, and assert that this is well within 10 days from receiving notice. We do not agree.
C.G.S. Section 31-301(a) provides:
At any time within ten days after entry of such 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 thereon to the compensation review board by filing in the office of the commissioner from which such award of such decision on a motion originated an appeal petition and five copies thereof.
Clearly, Sec. 31-301(a) requires that a party to appeal must file a petition within 10 days of the Finding and Award by the Commissioner not 10 days from receipt of notice of the Finding and Award.
In Conaci v. Hartford Hospital, 1263 CRD-1-91-7 (decided Sept. 14, 1993), appeal docketed No. A.C. 12882 (Oct. 4, 1993) the C.R.B. held that where a party receives notice of the commissioner's Finding and Award within the original ten-day appeal period, the party must file the Petition for Review within that timeframe. Conaci, did however, suggest that the C.R.B. may consider the circumstances surrounding a late filing of an appeal. The facts of Conaci were that the claimant received notice of the Commissioner's July 15 Finding and Award on July 23. Rather than submitting the Petition within the two days remaining in the original 10-day period, the claimant delayed until July 31, six days beyond the deadline. Notwithstanding the delay, the claimant did not suggest any reason why she could not have filed within the original 10-day period. Therefore, the C.R.B. lacked jurisdiction.
The respondents assert that Trinkley v. Ella Grasso Center, 220 Conn. 739 (1192), is controlling, and consequently that their Petition for Review was timely filed. In Trinkley, the Court addressed the issue of the timeliness of an appeal from a Commissioner's Finding. The Trinkley Court asserted that a determination that an appeal is untimely cannot be made on the basis of the date of the Finding alone. Id. at 743; Conaci, supra. Rather, the date of receipt of the notice of the decision must be considered before dismissing an appeal. Id.; Conaci, supra. However, in Trinkley the appellant had faxed the petition for review within the original 10 day period but failed to file the original petition or 5 copies until 14 days after the Finding by the commissioner. In the case at hand, the respondent failed to file anything within the 10 day period required by C.G.S. Section 31-301(a). Furthermore, in Conaci, we stated that "[n]owhere in Trinkley, however, did the court state that an appealing party is entitled in all circumstances to a ten-day appeal period commencing from the date of notice." Conaci, supra. Additionally, in Conaci, we considered and distinguished Murphy v. Elms Hotel, 104 Conn. 351 (1926). The court in Murphy concluded that although the procedure for appeals in the Workers' Compensation Act requires that a petition for review should be filed within 10 days after entry of the commissioner's finding, "the General Assembly intended this provision to mean ten days after notice to the party of the entry of such finding; otherwise, in the event of failure of the commissioner to notify the party of his finding and award within the ten-day period, the taking of the appeal would be fruitless." Id. at 352. In Conaci, supra, we held that neither Murphy nor Trinkley, required that a party has ten days to appeal from receipt of notice where the party receives notice of the commissioner's award within the original ten-day appeal period. Furthermore, we asserted in Conaci that Murphy will be interpreted narrowly "to save a late appeal filed within 10 days after notice of the commissioner's award only where the party did not receive notice of the decision within the ten days of the entry of the award." Id.
In the present case, the respondents contend that they did not receive notice of the commissioner's October 23 decision until three days later on October 26. The respondents still had 7 more days on which to timely file the appeal. The respondents here, as the claimant in Conaci, have not suggested any reasons for not filing within the original appeal period.
Because the respondents received notice of the Commissioner's Finding and Award on October 26, and could have filed their appeal well within the original 10-day period, we lack jurisdiction over the appeal. Accordingly, we need not consider any other issues raised. We, therefore, dismiss the appeal.
Commissioners John A. Arcudi and Donald H. Doyle, Jr. concur.