Opinion
CASE NO. 987 CRD-5-90-3
MARCH 13, 1991
The claimant was represented by Robert Carter, Esq., and Donna Civitello, Esq., Carter, Rubenstein Civitello.
The respondent was represented by Andrew J. Hern, Esq., Montstream and May.
This Petition for Review from the February 26, 1990 Finding and Award of the Commissioner for the Fifth District was heard August 10, 1990 before a Compensation Review Division panel consisting of the commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Angelo L. dos Santos.
OPINION
Claimant seeks to dismiss the present appeal because respondent failed to file the appeal within tend days as provided by Connecticut General Statutes Section 31-301 and Administrative Regulations Section 31-301-1. The Fifth District issued a Finding and Award for claimant February 26, 1990. However, respondent's Petition for Review was not filed until March 9, 1990, on the eleventh day following the Finding and Award.
In its brief respondent relies on Murphy v. Elms Hotel, 104 Conn. 351 (1926); Palozzi v. American Brass Company, 15 Conn. Sup. 33 (1947) in that appeal must be taken within ten days after notice to the appellant. The respondent appellant submits "notice" should be interpreted as actual notice, when notice is received. The respondent contends it did not receive the February 26, 1990 Finding and Award until February 27, 1990, therefore its appeal was timely filed. We do not agree.
Connecticut General Statutes Section 31-301 (a) provides: "At any time within ten days after entry of such award by the commissioner . . . either party may appeal therefrom to the compensation review division by filing in the office of the commissioner from which such award. . . originated an appeal petition . . . ." (emphasis added) The issue of whether the instant statute is procedural or substantive has been decided by this tribunal on numerous occasions. We have held that the ten day appeal period statute is substantive and not procedural, thereby depriving us of subject matter jurisdiction to hear the appeal. Famiglietti v. Dossert Corporation, 8 Conn. Workers' Comp. Rev. Op. 65, 804 CRD-5-88-12 (1990), Morant v. Stanadyne, Inc,.[.,] 8 Conn. Workers' Comp. Rev. Op. 116, 828 CRD-1-89-2 (1990) and Johnston v. ARA Services, Inc., 7 Conn. Workers' Comp. Rev. Op. 19, 765 CRD-7-88-8 (1989). We are satisfied that these decisions control the outcome of this appeal.
In Stevens v. City of Hartford, 8 Conn. Workers' Comp. Rev. Op. 134, 831 CRD-1-89-2 (1990), we held otherwise. The present appeal is distinguishable from Stevens. March 8, 1990, the last filing day for this appeal was a Thursday when the Fifth District Office was open. The respondent had actual notice of the Finding and Award within the ten day period for the filing of the appeal. It failed to do so.
As the appeal is dismissable for late filing, we need not consider any other issues raised.
We, therefore, dismiss respondent's appeal.
Chairman John Arcudi and Commissioner Gerald Kolinsky concur.