MALIK ALMAHDI, CLAIMANT-APPELLANT v. STATE OF CONNECTICUT/SOMERS CORRECTIONAL INSTITUTE, EMPLOYER, RESPONDENT-APPELLEE

CASE NO. 1355 CRD-2-91-12Workers’ Compensation Commission
NOVEMBER 10, 1993

The claimant was represented by Mark E. Blakeman, Esq., Michelson, Kane, Royster and Barger, P.C.

The respondent was represented by Taka Iwashita, Esq., Assistant Attorney General.

This Petition for Review from the December 4, 1991 Finding and Award of the Commissioner At Large acting for the Second District was heard November 20, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners John A. Arcudi and Frank J. Verrilli.

OPINION

JESSE FRANKL, CHAIRMAN.

The claimant challenges the decision of the Commissioner At Large which sustained the Second District Commissioner’s approval of the respondent’s Form 36 terminating the claimant’s temporary total benefits for a work-related wrist injury as of September 9, 1991. We dismiss the claimant’s untimely appeal for lack of jurisdiction.

The trial commissioner issued his Finding and Award sustaining the Form 36 approval on December 4, 1991. The tenth day to appeal fell on a Saturday, allowing the claimant until December 16, 1991, to file a timely Petition for Review. See Practice Book Sec. 4010. The claimant, who had represented himself before the trial commissioner and was acting pro se when he filed this appeal, filed his Petition for Review on December 17, 1991.

The respondent raised the issue of the untimely appeal in its brief to this tribunal. At oral argument before this Board, the claimant offered no explanation for the lateness of the appeal. We note that the claimant’s Petition for Review is dated December 14, 1991, two days prior to the last day for the filing of a timely appeal.

The timeliness of the claimant’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). The claimant’s failure to file the Petition for Review within ten days of the date of entry of the Finding and Award deprives us of jurisdiction over this appeal. General Statutes Sec. 31-301(a); Conaci v. Hartford Hospital, 1263 CRD-1-91-7
(decided September 14, 1993), appeal docketed No. AC 12882 (October 4, 1993). There is no suggestion in this case that the claimant did not receive notice of the decision within the ten days following the entry of the award.[1] Compare Paccadolmi v. Town of Newtown, 10 Conn. Workers’ Comp. Rev. Op. 116, 117 n. 1, 1270 CRD-4-91-8 (1992); Stevens v. City of Hartford, 8 Conn. Workers’ Comp. Rev. Op. 134, 831 CRD-1-89-2 (1990). Additionally, the fact that the Petition was dated December 14, 1991, by the claimant strongly suggests otherwise. The claimant’s failure to offer an explanation for the late filing which would justify a conclusion that the time requirements for Sec. 31-301(a) should be tolled requires that we dismiss the appeal. See Crochiere v. Enfield Board of Education, 10 Conn. Workers’ Comp. Rev. Op. 165, 167, 1069 CRB-1-90-7, aff’d on other grounds, 227 Conn. 333, 340 n. 6 (1993). Accordingly, since we lack jurisdiction to consider the claimant’s appeal, we cannot address the merits of his challenge to the trial commissioner’s decision or his motion to submit additional evidence or testimony.[2]

Commissioners John A. Arcudi and Frank J. Verrilli concur.

[1] We have recently concluded that “[n]either Murphy [v. Elms Hotel, 104 Conn. 351 (1926),] nor Trinkley [v. Ella Grasso Regional Center, 220 Conn. 739 (1992),]. . . require 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. Consequently, we have interpreted Murphy narrowly to save a late appeal filed within ten 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.” (Emphasis in original.) Conaci v. Hartford Hospital 1263 CRD-1-91-7 (decided September 14, 1993), appeal docketed No. AC 12882 (October 4, 1993).

The Conaci case includes an exhaustive analysis of the case law concerning the timeliness of appeals from the issuance of the commissioner’s decision versus from the receipt of notice of the decision. It would serve no useful purpose to repeat that discussion in this case, as the Conaci decision may be consulted for that purpose.

[2] We note that the claimant’s arguments on appeal pertain to an alleged disability on account of hypertension. The only issue before the trial commissioner was the claimant’s disability on account of an accepted wrist injury. If the claimant seeks to establish disability on account of hypertension, he should pursue a claim for the same in a separate proceeding.