ROBERT BATTISTA, CLAIMANT-APPELLANT vs. AMERICAN POWERED METALS COMPANY, EMPLOYER and COMMERCIAL UNION ASSURANCE COMPANIES, INSURER, RESPONDENTS-APPELLEES

CASE NO. 130-CRD-3-82Workers’ Compensation Commission
NOVEMBER 9, 1982

The Claimant-Appellant was represented by William F. Gallagher, Esq.

The Respondents-Appellees were represented by Bruce Thompson, Esq.

This Petition for Review from the January 20, 1982 Decision of the Commissioner for the Third District, was argued October 29, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, Gerald Kolinsky and Frank Verrilli.

John Arcudi, Chairman, Gerald Kolinsky, Commissioner, Frank Verrilli, Commissioner

Dismissal For Lack Of Prosecution

A Finding and Award in the instant case was issued by the Commissioner for the Third District January 20, 1982. Attorney William F. Gallagher of New Haven filed a Petition for Review on behalf of the claimant January 29, 1982. He also filed a “Motion for Extension of Time” to file further papers simultaneously with the Petition.

On August 11, 1982 Attorney Gallagher wrote to the Workers’ Compensation Commission that he had advised the claimant Robert Battista that the appeal had only been filed to protect Battista’s rights and that the said attorney would not continue further in the prosecution of the appeal. The attorney stated further that he had so advised the claimant in writing several times.

On September 27, 1982 Attorney Gallagher filed a Motion to Withdraw as counsel for the appellant, and on September 30 the Chairman’s office addressed a copy of this motion via certified mail to Mr. Robert Battista at 129 Main Street, East Haven, CT 06512. Along with that copy went a letter to the claimant informing him that the matter was scheduled for argument before the Compensation Review Division on October 29, 1982. This certified mailing was returned undelivered to the Chairman’s office. Thereupon that office communicated with Attorney Gallagher’s office which reported that the claimant’s new address was Mr. Robert Battista, 29 Susan Lane, North Haven, CT 06473. The letter and motion were then remailed by certified mail to the claimant at his new address. The return receipt from the certified mailing was returned showing that it had been signed by “Mrs. Battista.”

On October 18, 1982 a Motion to Dismiss Appeal was filed by the Respondents-Appellees citing the reason that no briefs had been filed by the assigned date of October 18. The matter was in fact heard before the undersigned panel October 29 at 12:00 noon, and the claimant was not present although there was an attorney present from Attorney Gallagher’s office and also an attorney for the Appellees. The matter was continued until 12:30 p.m. to assure sufficient time for the claimant to arrive should he be late.

When the claimant still failed to arrive, the matter went forward after 12:30 p.m. The Respondents pressed their Motion to Dismiss and Attorney Gallagher’s representative pressed his Motion to Withdraw.

Attorney Gallagher’s Motion to Withdraw is granted. The Appeal is dismissed for lack of prosecution.