ROBERT ANGILETTA CLAIMANT-APPELLANT v. A K RAILROAD MATERIALS, INC. EMPLOYER and HARTFORD ITT INSURANCE GROUP INSURER RESPONDENTS-APPELLEES

CASE NO. 4411 CRB-3-01-6 CLAIM NO. 300006551Compensation Review Board WORKERS’ COMPENSATION COMMISSION
AUGUST 6, 2002

The claimant was represented by William Shea, Esq., Shea Cook, 290 Pratt Street, P.O. Box 1856, Meriden, CT 06450.

The respondents were represented by Frank Ancona, Esq., Edward Henfey
Associates, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

This Petition for Review from the June 20, 2001 Finding and Dismissal of the Commissioner acting for the Third District was heard February 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle Jr., and Amado J. Vargas.

OPINION
JOHN A. MASTROPIETRO, CHAIRMAN.

The claimant has petitioned for review from the June 20, 2001 Finding and Dismissal of the Commissioner acting for the Third District. In that decision the trial commissioner denied the claimant’s request for discretionary § 31-308a benefits. The sole issue on appeal is the claimant’s contention that the Finding and Dismissal is void because it was not issued within 120 days as required by § 31-300.

Section 31-300 provides in pertinent part: “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his findings and award.” Our Supreme Court has held that the time period in § 31-300 is mandatory, and that prejudice need not be demonstrated to invalidate a late decision. Stewart v. Tunxis ServiceCenter, 237 Conn. 71, 76-80 (1996). However, the parties may waive a trial commissioner’s noncompliance with § 31-300, either explicitly or implicitly by conduct. Id., p. 80. Whether the claimant waived the 120-day rule is a question of fact which this board must determine.Stewart, 237 Conn. 81, fn. 7.

In the instant case, trial commissioner’s decision was issued more than 120 days after the submission of proposed findings on September 14, 2000. At issue is whether the claimant waived the trial commissioner’s noncompliance with § 31-300. Specifically, the claimant’s attorney argues that he sent two letters to the trial commissioner, one dated January 23, 2001 and one dated May 29, 2001. The January 23, 2001 letter states:

Robert Angiletta has been calling repeatedly concerning the status of his above-referenced claim. I have informed him of the 120 day rule and I know he and his family would appreciate closure on this claim.

The May 29, 2001 letter states:

My file indicates the Proposed Finding of Fact and final brief in the above referenced matter was filed September 14, 2000. On January 23, 2001 I wrote to you requesting your assistance in completing this claim.
Without waiving any rights of the claimant, I respectfully request a response as my client and his family are unduly hampered by the extended delay.

In the Stewart case, on remand from our Supreme Court this board stated that “when the 120-day time limit has long passed, and a party has made no indication that it has an objection to the lateness of a decision, this board is inclined to interpret that inaction as an intent to waive the 120-day time limit. A party shall not be allowed to choose to enforce its right to invalidate a ruling only after the party reviews the decision and decides that it is adverse to its interests, barring special circumstances.” Stewart v. Tunxis Service Center, 16 Conn. Workers’ Comp.Rev.Op. 69, 71, 1684 CRB-6-93-4 (October 30, 1996). “We will not allow parties to acquire a type of veto power over a decision by failing to object to a late award until they have an opportunity to see whether they approve of the result.” Minneman v. Norwich Board of Education, 2294 CRB-2-95-2 (Dec. 13, 1996), aff’d, 47 Conn. App. 913 (1997) (per curiam), cert. denied, 243 Conn. 962 (1998).

In Ridente v. MMR Wallace, 3303 CRB-6-96-3 (Aug. 21, 1997), the Fund wrote to the trial commissioner regarding a legislative change to §31-349, but did not mention the tardiness of the trial commissioner’s decision. We found that the Fund’s letter did not constitute an objection to the lateness of the trier’s decision, and thus concluded that the Fund waived its right to a timely decision under § 31-300. Similarly, inLalanne v. Greenwich, 3914 CRB-7-98-10 (Sept. 2, 1999), we found that alleged verbal inquiries regarding the lateness of a trial commissioner’s decision did not constitute a sufficient objection to the lateness of the trier’s decision.

We must now determine, as a question of fact, whether the claimant’s conduct, specifically the two letters quoted above, constitute a waiver of the 120-day time limit. In the instant case, the claimant’s letters are in fact requesting that the trier issue a decision. Significantly, the letters do not request a new formal hearing. This is a significant distinction, because if we were to construe a request for the issuance of a decision as an objection to the lateness of the trier’s decision, then once the trier’s decision is issued, the complaining party could then review the decision and decide whether to enforce the 120-day rule. In essence, the party could “choose to enforce its right to invalidate a ruling only after the party reviews the decision” in contravention to our holding in Stewart, supra, and Minneman, supra. In order to avoid this gamesmanship, we must require that the objecting party request that a new hearing be held, as was done in Stewart, supra.

Thus, the party who is concerned regarding the lateness of the trier’s decision may either request that a decision be issued promptly, or may instead request that a new hearing be held. However, a party may not request a prompt decision, wait for said decision and review it, and then decide whether to request invalidation under § 31-300.

Here, the letters sent by the claimant’s attorney request that the trier issue a prompt decision, but in neither letter does the claimant request a new formal hearing. Thus, we find that the claimant waived his right to enforce the 120-day rule under § 31-300.

The trial commissioner’s decision is affirmed.

Commissioners Donald H. Doyle Jr., and Amado J. Vargas concur.

CERTIFICATION
THIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 6th of August 2002 to the following parties:

ROBERT R. ANGILETTA

WILLIAM SHEA, ESQ. 7099 3400 0008 5539 4071

A K RAILROAD MATERIALS, INC.

FRANK ANCONA, ESQ. 7099 3400 0008 5539 4064

___________________ Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers’ Compensation Commission