JAMES ANDREWS, CLAIMANT-APPELLEE vs. SAL’S EXPRESS COMPANY, EMPLOYER and HARTFORD ACCIDENT INDEMNITY, INSURER, RESPONDENTS-APPELLANTS

CASE NO. 228 CRD-4-83Workers’ Compensation Commission
DECEMBER 3, 1984

The Claimant was represented by Peter Masanotti, Esq.

The Respondents were represented by Paul E. Pollock, Esq.

This Petition for Review from the April 18, 1983 Finding and Award of the Fourth District Commissioner was argued January 27, 1984 before a Compensation Review Division Panel consisting of Commissioners Gerald Kolinsky, A. Paul Berte and Robin Waller.

OPINION

GERALD KOLINSKY, Commissioner.

The facts in this appeal, as corrected, are undisputed and may be summarized as follows: On April 1, 1977, the claimant was employed as a general handyman and truck helper, and on said date was severely burned in a fire of undetermined origin in a trailer in which he was sleeping. Said trailer was the property of the employer, located on the employer’s property immediately adjacent to its buildings and utilized as sleeping quarters by the claimant with the consent, knowledge and agreement of the employer, being equipped with a bed, dresser and chair provided by the employer to the claimant at no rental fee.

The injuries which the claimant suffered, resulted in facial scarring and functional loss of use of both hands. The claimant had no keys to the building owned by the employer or to the outside phone or to the gate and the claimant had no training as a watchman.

Based upon the foregoing facts the Commissioner awarded compensation benefits to the claimant directing the respondents to pay total disability benefits, all medical bills and specific injury benefits for loss of function of both hands and directed that a scarring evaluation be performed on the claimant.

The respondents duly filed a Petition for Review on April 27, 1983, and on May 9, 1983 filed a “Motion for Extension of Time to File Reasons of Appeal” “until ten days after the Motion to Correct the Finding has been decided”, which Motion for Extension of Time indicated that “said additional time is necessary because the respondent intends to file a Motion to Correct the Finding once the Finding has been filed and the transcript is available and if said Motion to Correct is denied, said denial will be one of the reasons for appeal.”

Said Motion for Extension of Time was granted.

The transcript was available on or about July 15, 1983.

On October 4, 1983, the Claimant-Appellee filed a Motion to Dismiss the Appeal for failure to prosecute.

On October 4, 1983, the Respondents-Appellants filed a Motion to Correct Finding with the hearing Commissioner, which Motion was granted.

On November 14, 1983, the Respondents-Appellants filed their Reasons of Appeal.

The Commissioner for the Fourth District granted the Claimant’s October 4, 1983 Motion to Dismiss, but all parties concede that the Commissioner was without jurisdiction to do so, such action falling within the purview of the Compensation Review Division.

This panel is of the opinion that the Motion to Correct the Finding, filed on October 3, 1983, addressed to the Commissioner’s Finding and Award, dated April 18, 1983, was not filed in conformity with 31-301-4 of the Workers’ Compensation Administrative Regulations which requires that an appellant file a Motion for Correction of the Finding within two weeks after such finding has been filed, unless the time is extended for cause by the Commissioner. In this instance, said Motion to Correct the Finding was not filed until some five and one-half months after the issuance of the Finding by the Commissioner but notwithstanding such tardiness it was granted by the Commissioner, the time for filing having been extended by implication. Rossi v. Jackson Company, et als, 120 Conn. 456, 464 (1935).

Although there is some merit to the claimant’s argument that the appeal ought to be dismissed for lack of diligence on the part of the respondents in prosecuting the appeal, the Reasons for Appeal were, in fact, filed within ten days after the Motion to Correct the Finding had been granted, and thus the respondents can claim to have acted in a timely manner.

We feel it would unduly prejudice the rights of all parties were we to summarily dispose of this case on a Motion to Dismiss, and accordingly, we decline to do so.

Regarding the merits of the case, in examining the Finding and Award, dated April 18, 1983, we note there is no Finding by the Commissioner that the accidental injury complained of by the claimant arose out of and during the course of his employment.

Such a Finding is prerequisite to awarding compensation benefits and accordingly, we hereby remand this case to the Commissioner with direction to make further findings of fact on the issues of whether or not the claimant’s accidental injury arose out of and during the course of his employment.

Commissioners A. Paul Berte and Robin Waller concur in this opinion.