CASE NO. 786 CRD-3-88-11Workers’ Compensation Commission
APRIL 6, 1989
The claimant was represented by Roger J. Frechette, Esq.
The respondent was represented by Brewster Blackall, Esq., Assistant Attorney General.
The Motion to Dismiss the Appeal from the October 27, 1988 Finding and Award of the Commissioner for the Third District was heard March 16, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte and Robin Waller.
RULING ON CLAIMANT’S MOTION TO DISMISS
JOHN ARCUDI, Chairman.
Claimant has moved to dismiss the respondent’s appeal on procedural grounds, i.e. failure to submit Reasons of Appeal within ten days after the Petition for Review. On October 27, 1988, the Third District Commissioner awarded chapter 568 benefits to claimant. the dependent surviving widow. Respondent’s Petition for Review was received November 4, 1988. On November 15, claimant’s Motion to Dismiss Appeal was filed[1] . The same day, respondent filed its Reasons of Appeal[2] .
One reason of appeal asserted, “the Commissioner erred in finding that this claim was within the jurisdiction of the Workers’ Compensation Commission”. Castro v. Viera, 207 Conn. 420
(1988) holds that existence of an employee-employer relationship is a threshold matter which if not found deprives the Commissioner of jurisdiction. That case noted:
This [the employment] relationship is threshold because it is settled law that the “commissioner’s jurisdiction is confined by the Act and limited by its provisions'”, Gagnon v. United Aircraft Corporation, 159 Conn. 302, 305, 268 A.2d 660 (1970). Long ago, we said the jurisdiction of the Commissioners “is confined by the Act and limited by its provisions. Unless the Act gives the Commissioner the right to take jurisdiction over a claim, it cannot be conferred upon [the Commissioner] by the parties either by agreement, waiver or conduct”, Jester v. Thompson, 99 Conn. 236, 238, 121 A. 270 (1923).
Castro, supra, at 426.
The recent holdings in Castro and Palletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276 (1988), cert. denied 207 Conn. 805
(1988), are the latest in a long series of decisions defining the limited subject matter jurisdiction of the Commission as a creature of statute[3] . Neither can such jurisdiction be conferred by consent or waiver, Cahill v. Board of Education, 198 Conn. 229 (1985); Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534 (1985); Lenge v. Goldfarb, 169 Conn. 218 (1975). Moreover, an award or a judgment entered by a tribunal without jurisdiction over the res “is void ab initio and subject to both direct and collateral attack”, Broaca v. Broaca, 181 Conn. 463, 467 (1980).
Claimant’s dismissal motion relies on our rule, Administrative Regulation Sec. 31-301-2, creating a limited time for filing Reasons of Appeal. That “time limitation . . . is procedural, and not jurisdictional or substantive in nature, . . . .”, Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 697-98, note 5 (1987). As the Sager case holds, if the missed time limitation involved had been jurisdictional or substantive, then it would have mandated dismissal. In contrast to Sager, a failure to meet a filing deadline in Pelletier, supra, did result in dismissal. However, the Pelletier time limitation was statutory and therefore considered jurisdictional by the court.
Balanced against the claimant dependent’s argument that the appeal is dismissable for a procedural defect, is the respondent employer’s contention that a Superior Court judge is not an employee within the meaning of Sec. 31-275(5), C.G.S.. And, absent that employment status, the whole proceeding is void ab initio, hence dismissable in its entirety. Again, the Broaca language is relevant: “While it is true that neither (the) . . . Statutes nor Practice Book, . . . authorized the trial court to open and modify its judgment, it is clear that, under the common law, a trial court has inherent authority to open and modify a judgment it rendered without jurisdiction”, Broaca, supra, at 467. Similarly, the Broaca dissent by the present Chief Justice pertains: “The accompanying comments[4]
emphasize that if the original proceedings, in a tribunal of general rather than limited legal capacity, constituted a contested action, relitigation is ordinarily precluded whether or not the question of the tribunal’s jurisdiction expressly raised in the original action” (underlining ours), Id., 472.
Since the Workers’ Compensation Commission is a tribunal of “limited legal capacity” and since the question of jurisdiction was expressly raised below, we must conclude that the question of subject matter jurisdiction in the proceeding be raised at any time, either directly or collaterally. If that question of jurisdiction or lack of it is decided in favor of the employer, then the claimant’s Motion to Dismiss the Appeal for a procedural defect would be meaningless. If we are without jurisdiction over the res, then we are without jurisdiction to dismiss the appeal.
Therefore, at this point in the proceedings we deny claimant’s motion to dismiss the appeal.
Commissioners Robin Waller and A. Paul Berte concur.
Within ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal. Where the reasons of appeal present an issue of fact for determination by the division, issue must be joined by a pleading filed in accordance with the rules applicable in ordinary civil actions; but where the issue is to be determined upon the basis of the finding of the commissioner and the evidence before him, no pleadings by the appellee are necessary.
(1956); Rehtarchik v. Hoyt Messinger Corporation, 118 Conn. 315
(1934); Walsh v. Wilson, 112 Conn. 579 (1931).