Kudlacz v. Lindberg Heat Treating Co.

712 A.2d 973, 49 Conn. App. 1, 1998 Conn. App. LEXIS 255

• Court: Connecticut Appellate Court
• Decided: June 9, 1998
• Docket: AC 17337
• Status: Published

Opinions

Opinion

FOTI, J.

The plaintiff, Henry Kudlacz, appeals from the decision of the compensation review board (board) of the workers’ compensation commission dismissing his appeal to that board. The plaintiff appeals to this court pursuant to General Statutes § 31-SOlb.¹ The plaintiff claims that the board improperly determined that he failed to file a timely appeal pursuant to General Statutes § 31-301 (a).²

The following facts are relevant to this appeal. The plaintiff claimed to be injured on May 29, 1992, in the course of his employment as a delivery driver, and on June 4, 1992, in the course of his employment as a package sorter handler.³ In considering the evidence and testimony presented, the workers’ compensation commissioner (commissioner) concluded that the plaintiff was not credible and that he “was not injured at either [employment] as he alleged and, to the extent he may have had a repetitive trauma injury to his back at [the second employment], there was no resulting permanent disability and no compensable period of temporary disability since the [plaintiff] continued to work after the injury . . . .” The commissioner vacated a voluntary agreement issued by the first employer and its insurance carrier based on mutual mistake of fact, and dismissed all claims for compensation and medical treatment presented by the plaintiff.

The plaintiff filed his petition for review of the commissioner’s decision on August 21, 1996. The board determined that meaningful notice of the commissioner’s decision was sent to the parties on August 8, 1996, and, therefore, the petition should have been filed by Monday, August 19, 1996.⁴ The board concluded that it lacked jurisdiction over a petition for review not timely filed and dismissed the plaintiffs appeal.

“Section 31-301 (a) provides that ‘[a]t any time within ten days after entry of an award by the commissioner . . . either party may appeal therefrom to the Compensation Review Board,’ and General Statutes § 31-300 provides that ‘[i]f no appeal from [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 in the superior court.’ This court [has] held that the ten day appeal period set forth in § 31-301 (a) ‘begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner’s decision.’ Conaci v. Hartford Hospital, 36 Conn. App. 298, 303, 650 A.2d 613 (1994). In Conaci, the appellants challenged the board’s finding that their appeal was jurisdictionally defective because the appellants had allegedly failed to file their appeal with the board within the time prescribed by § 31-301 (a). We remanded Conaci for a determination of the date on which notice of the commissioner’s decision was sent to the parties and, based on that finding, a proper assessment of whether the appeal was timely.” Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720, 667 A.2d 76 (1995). We recently reaffirmed our decision in Conaci that the ten day appeal period begins to run on the day that the party wanting to appeal is sent meaningful notice of the commissioner’s decision. See Vega v. Waltsco, Inc., 46 Conn. App. 298, 301, 699 A.2d 247 (1997); Cyr v. Domino’s Pizza, 45 Conn. App. 199, 203-204 n.5, 695 A.2d 29 (1997).

“Once the board determines that an appeal is untimely it no longer has jurisdiction to address any remaining substantive claim. Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 648, 363 A.2d 1085 (1975); Chzrislonk v. New York, N. H. & H. R. Co., 101 Conn. 356, 358, 125 A. 874 (1924) (action dismissing untimely workers’ compensation appeal); Wheeler v. New York, N. H. & H. R. Co., 71 Conn. 270, 282, 41 A. 808 (1898) (cited in Chzrislonk). In Chieppo, the appellant erroneously brought its appeal from a commissioner’s award to the Superior Court rather than the Court of Common Pleas resulting in a late filing of the appeal.⁵ Chieppo v. Robert E. McMichael, Inc., supra, 648. As a result of the error, the Court of Common Pleas dismissed the appeal for lack of jurisdiction. Id. Our Supreme Court affirmed that decision. Id., 654.” Freeman v. Hull Dye & Print, Inc., supra, 39 Conn. App. 720-21.

We cannot conclude that the board’s finding that meaningful notice of the commissioner’s decision was sent to the parties on August 8,1996, and that the plaintiffs petition for review should have been filed by Monday, August 19, 1996, is clearly erroneous. The plaintiff argues, however, that a distinction should be made between this case, where he might be able to prove that he received notice of the commissioner’s decision after the ten day period had expired,⁶ and all of the other cases, including those decided by the board,⁷ that assume by implication that the party who wants to appeal has actual or constructive notice of the commissioner’s decision on the day the notice is mailed. We decline to adopt the position argued by the plaintiff. As we stated in Conaci, a holding that the appeal period commences when notice of the appealable decision is received “would create undue delay and difficulties in proving receipt by the party wanting to appeal.” Conaci v. Hartford Hospital, supra, 36 Conn. App. 303. In determining when the appeal period commences, we rely, rather, on the records of the commissioner as to when notice is sent. Id., 304. As we have recently stated, “This court must construe [§ 31-301 (a)] as it finds it without reference to whether we feel that the law might be improved .... [We] cannot rewrite a statute to accomplish a particular result. That is the function of the legislature.” (Citation omitted; internal quotation marks omitted.) Vega v. Waltsco, Inc., supra, 46 Conn. App. 304.

The decision of the compensation review board is affirmed.

In this opinion LANDAU, J., concurred.

1 General Statutes § 31-301b provides: “Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in .the proceedings may appeal the decision of the Compensation Review Board to the Appellate Court.”

2 General Statutes § 31-301 (a) provides: “At any time within ten days after entry of an 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 therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties.”

3 The plaintiff claims that the first iqjury was to his head and neck, and the second was to his back. The plaintiff sought benefits from his employers, the defendants Lindberg Heat Treating Company and United Parcel Service, Inc., and their respective insurance carriers, the defendants Crawford and Company and Liberty Mutual Insurance Company.

4 The record discloses that the address for the plaintiffs attorney is a post office box and not a street address.

5 General Statutes (Rev. to 1972) § 31-301 provided that parties appeal commissioner’s awards to the Court of Common Pleas. Public Acts 1979, No. 79-540, § 3, amended § 31-301 to provide that appeals be taken to the compensation review division and Public Acts 1991, No. 91-339, § 20, amended § 31-301 to its current state, which provides that appeals be taken to the board.

6 The dissent makes much of the “critical finding” that only the plaintiff failed to “receive” notice within the ten day appeal period. Query: Was the purpose of that “finding” merely to point out that the other parties did receive notice within the appeal period, and that it was only the plaintiff who claimed that he did not receive notice? Is this a “finding” that the plaintiff did not receive notice because it was not delivered during the appeal period, or, rather, that notice was delivered during the appeal period but that the plaintiff did not “receive” it because he neglected to pick up his mail at his post office box? The dissent would have a party defeat the requirements for filing a timely appeal pursuant to § 31-301 (a) by simply neglecting to pick up his mail or refusing to sign for a certified letter.

7 The board has consistently held that the ten day appeal period begins to run on the day that meaningful notice is sent to the parties, rather than when such notice is received by the parties. See Schreck v. Stamford, 3322 CRB-7-96-4 (September 23, 1997); Vega v. Waltsco, Inc., 15 Conn. Workers’ Comp. Rev. Op. 307 (June 21, 1996); Cyr v. Domino’s Pizza, 15 Conn. Workers’ Comp. Rev. Op. 151 (January 26, 1996).