Opinion
CASE NO. 831 CRD-1-89-2
AUGUST 6, 1990
The claimant was represented by Jeffrey Polinsky, Esq., and John Serrano, Esq.
The respondents were represented John Clarkson, Esq., and Marjorie Howes Drake, Esq. of Naab Danforth, and Robert Cullen, Esq.
This Petition for Review from the January 27, 1989 Finding and Award of the Commissioner at Large acting for the First District was heard February 23, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioner Robin Waller and George Waldron.
OPINION
Respondents urge dismissal of claimant's appeal for an alleged failure to file the appeal within the ten days permitted by Sec. 31-301, C.G.S. In fact the Finding and Award was dated January 27, 1989 and the appeal was filed February 21, 1989. But the Finding and Award which had been mailed to claimant's attorney when originally rendered was returned undelivered. The document was then remailed February 8, 1989.
In Murphy v. Elms Hotel, 104 Conn. 351, 352 (1926) Court declared the statute controlling the time for appeals "mean[s] ten days after notice to the party of entry of such finding. . . ." Claimant thus had ten days from the February 8, 1989 remailing or until February 18. The offices of the Commission were closed Saturday, February 18, 1989, Sunday, February 19, 1989 and Monday, February 20, 1989 due to a legal holiday. Therefore, claimant's filing of an appeal on the next business day renders the filing timely. See Practice Book Sec. 4010. See also, Alderman Bros. Co. v. Westinghouse Air Brake Co., 91 Conn. 383 (1917), (per curiam), Faraci v. Connecticut Light Power Co., 5 Conn. Workers' Comp. Rev. Op. 160, 508 CRD-2-86 (1988).
Claimant also raises a jurisdiction as his decision was rendered after 120 days. He argues that Sec. 31-300 C.G.S. which provides: "As soon as may be after the conclusion of any hearing but not later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his award." Claimant contends the hearing was March 14, 1988 and jurisdiction was therefore lost by July 13, the one hundredth, and twenty-first day without a decision being rendered.
Besade v. Interstate Security Services, 212 Conn. 441, 450-52 (1989) considered a similar issue. Besade was somewhat factually different as respondents there argued the three and one-half year interval between hearings and the trial commissioner's decision was violative of due process rights. Here, the time period is set by the 1985 amendment to Sec. 31-300 C.G.S., Public Act 85-64. But the court's legal analysis in Besade is applicable. The court stated:
The appropriate provision in Sec. 31-300 C.G.S. at issue in Besade provided "As soon as maybe after the conclusion of any hearing the commissioner shall send to each party a written copy of his award."
The general rule is that, absent a violation of a specific statutory provision, delay in civil proceedings does not necessitate a new trial without a showing of prejudice. Even in criminal prosecutions, an impairment of a defendant's constitutional and statutory rights to a speedy trial does not mandate automatic dismissal of the charges, but rather triggers a balancing test, the most important factor of which is prejudice to the defendant; Barker v. Wingo, 407 U.S. 514, 530 (1972); State v. Herring, 210 Conn. 78, 89, (1989); see also Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 243 n. 6, 558 A.2d 986 (1989). A fortiori, delay in the rendering of a civil award does not automatically make the award invalid or mandate a rehearing.
Id. at 450.
Besade, does distinguish between delay in civil proceedings generally and delay where a statute controls. However, Besade also cited Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 243 n. 6 558 A.2d 986 (1989). In that case a grievance subcommittee failed to meed a statutory deadline, Sec. 51-90g(c), in making a presentment against an attorney. The trial judge therefore dismissed the presentment for lack of subject matter jurisdiction. The Supreme court reversed the trial judge and held that the committee had not lost jurisdiction despite the failure to comply with the statutory time limit. The court so held although conceding that the committee had failed to meet mandatory time constraints. Id. At 243, the court stated:
We will not, therefore, construe Sec. 51-90g(c) to require that if the subcommittee has failed to act within the prescribed time, and there is no showing of prejudice, the complaint must be dismissed.
(Footnote omitted) (emphasis ours).
In the instant matter the appellant has not demonstrated any prejudice from the commissioner's failure to meet statutory time requirements.
In construing Sec. 31-300 there are other considerations to be noted. The decentralized administration of our workers' compensation law ever since its passage in 1913 gives to each of the district commissioners jurisdiction over all claims arising in his territorial area, Sec. 31-278. It is not mere venue that resides in the district but jurisdiction. If the district commissioner is ousted from jurisdiction by the failure to comply with the 120 day requirement, the statute makes no provision for anyone else to acquire that jurisdiction. We therefore cannot conceive that the legislature intended on failure of compliance with the 120 day rule to oust the commissioner from subject matter jurisdiction and leave no one with jurisdiction to hear the disputants' claims. As the statute does not provide that the district loses jurisdiction, if prejudice be shown from the delay, jurisdiction would be retained, and the district commissioner would hear the matter de novo.
Sec. 31-278 in pertinent part states: The commissioners shall reside in the districts for which they are severally appointed, and each shall have jurisdiction of all claims and questions arising in such district under this chapter, . . .
To vacate a decision which may in all other respects under the act be properly reached in no way furthers the public policy the statute was designed to serve, i.e. the expeditious resolution of claims. Unless prejudice be shown, we fail to see how due process considerations have been violated by the commissioner's January 27, 1989 decision which the claimant has appealed.
The appeal is dismissed.
Commissioners Robin Waller and George Waldron concur.