author: WEST, J. LAVINE, J.,

text:
    LOVIE DECHIO v. RAYMARK INDUSTRIES, INC., ET AL.
    (AC 29461)
    Gruendel, Lavine and West, Js.
    Argued December 3, 2008
    officially released April 28, 2009

      Philip M. Schulz, assistant attorney general, with whom were J. Sarah Posner, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant second injury fund).

      MaribethM. McGloin, for the appellee (named defendant et al.).

      Lucas D. Strunk, for the appellee (defendant Hartford Insurance Group).

      EricL. Sussman, for the appellee (defendant General Reinsurance Corporation).

      Christopher Meisenkothen, for the appellee (plaintiff).
   Opinion

WEST, J.

This case presents an issue of first impression for this court regarding the time limitation for appeal from a decision of a workers’ compensation commissioner (commissioner) to the compensation review board (board) by the second injury fund (fund) under General Statutes § 31-301. Essentially we must answer this question: Is an appeal taken from a supplemental order directing the fund to compensate a plaintiff a timely appeal challenging the findings and awards preceding that order if that appeal was taken outside the mandated twenty days from the issuing of the operative finding and award? For the reasons we will state, we conclude that in the circumstances present here, such an appeal is not timely.

The following background provides the necessary context for our resolution of this issue. Although the fund became a part of our workers’ compensation statutory scheme during World War II, essentially for the purpose of enticing employers to hire returning disabled war veterans, the legislature has, in the intervening years, altered the fund’s statutory parameters. At present, the fund’s essential purpose is “to provide compensation for an injured [plaintiff] when the employer fails to pay.” Matey v. Estate of Dember, 256 Conn. 456, 486, 774 A.2d 113 (2001). For the fund to fulfill this purpose, a supplemental order must issue from a commissioner directing the fund to make payment to a plaintiff. Under our workers’ compensation statutory framework, the “prerequisites to an order [issuing from a commissioner] to the fund to make payment [to a plaintiff] are that: (1) the substantive and procedural requirements of the [workers’ compensation] act have been met; (2) an award against the employer has been entered; and (3) the employer and its insurer have failed to pay.” Id., 487-88. Only when these prerequisites—a finding and award properly entered against an employer and an employer’s or insurer’s failure to pay—have been satisfied, may a commissioner issue a supplemental order directing the fund to compensate a plaintiff in accordance with General Statutes § 31-355.

The fund’s appeal concerns the timeliness of its petition for review by the board from a supplemental order issued on October 25, 2006, by the commissioner for the fifth district, Amado J. Vargas, directing the fund to make such payment to the plaintiff, Lovie Dechio, in accordance with § 31-355. Specifically, the fund appeals from the board’s granting of the plaintiffs motion to dismiss the fund’s petition for review of the commissioner’s supplemental order as untimely. In Stec v. Raymark Industries, Inc., 114 Conn. App. 81, 968 A.2d 960 (2009), we concluded that § 31-301 (a) does not limit the board’s subject matter jurisdiction to hear a late appeal but, rather, provides the board with discretion to hear a late appeal when no timely motion to dismiss has been filed. Essentially, the issue we are presented with, therefore, is whether, under the circumstances, the plaintiffs motion to dismiss the fund’s appeal to the board was a timely filed motion objecting properly to a late appeal by the fund. The questions we must address, therefore, concern the timeliness of both the fund’s petition for review and the plaintiffs motion to dismiss. For the reasons indicated, we conclude that the fund’s petition for review was untimely and that the plaintiffs motion to dismiss was timely. Therefore, the board properly dismissed the fund’s appeal.

A review of the prolonged procedural history of the underlying claim is essential to the resolution of the fund’s appeal. On December 12, 1981, Peter Dechio, a retired, longtime blue collar worker for Raymark Industries Inc. (Raymark), died from complications resulting from lung cancer. Peter Dechio was the plaintiffs husband of nearly forty years at the time of his death. On June 24, 1988, the commission rendered a finding and award that found, inter alia, that Peter Dechio died as a result of his exposure to asbestos arising out of and during the course of his employment with Raymark and that his wife was entitled to benefits from his date of death until her death or remarriage pursuant to General Statutes § 31-306. The commissioner ordered Raymark to pay those benefits and stated that a hearing would be held to determine Peter Dechio’s average weekly wage. In 1988, Raymark entered involuntary bankruptcy, from which it briefly emerged in 1996. As a result, hearings on the compensation rate were not held until August and September, 1997. A decision was not reached, however, because Raymark entered voluntary bankruptcy in March, 1998, again putting a halt to the proceedings.

The plaintiff then sought relief from the automatic stay provisions of federal bankruptcy law so as to allow her to pursue payment from the fund under § 31-355. On June 29,2000, the plaintiff received an order from the Bankruptcy Court granting her relief from the automatic stay, which, in turn, allowed her to pursue her workers’ compensation claim. In 2002, the fund was cited into the proceedings because of its potential liability under § 31-355. Also cited into the proceedings as defendants were Zurich North America Insurance Company (Zurich), The Hartford Insurance Group (The Hartford), General Reinsurance Group (General Reinsurance) and the Connecticut Insurance Guarantee Association (association). Multiple formal hearings over the subsequent months formed the basis of the September 30, 2005 finding and award issued by Commissioner Vargas. In this finding and award, the commissioner found, among other things, that the “June 24, 1988 finding and award was proper in all respects and [that] the commissioner had the jurisdiction and authority to hear and rule on the claim.” He also found that there was no credible evidence that Zurich or The Hartford had insured Raymark’s blue collar, manufacturing employees and dismissed the fund’s claims against each of them. He also found, in regard to the association, that pursuant to General Statutes § 38a-838 (6), the claim was not a covered claim, nor did the commission have jurisdiction to determine the association’s liability. The commissioner also dismissed the fund’s claims against General Reinsurance, finding that the commission lacked the authority and jurisdiction to interpret the contract between General Reinsurance and Raymark.

The commissioner also found that, at that time, he was precluded from issuing a supplemental order against the fund because, he reasoned, an order must first be issued against Raymark, as the employer of record. Such an order, however, could not be issued, the commissioner found, because of Raymark’s bankruptcy status. The commissioner, however, left open the option of issuing a subsequent order against Raymark if it emerged from bankruptcy or if another relief from automatic stay was issued directly against Raymark by the Bankruptcy Court. Following either of those events, the commissioner could issue a supplemental order against the fund. The commissioner also found Peter Dechio’s average weekly wage adjusted for cost of living increases to be $337.22 and the resultant statutory compensation rate due the plaintiff to be $224.93.

On December 23,2005, the Bankruptcy Court granted the plaintiffs motion for relief from the automatic stay and ordered Raymark’s automatic stay lifted so as to allow the plaintiff to seek an order directly against Raymark pursuant to the commissioner’s September 30, 2005 finding and award. In his September 29, 2006 finding and award, the commissioner directed Raymark to pay all the benefits due the plaintiff under the September 30, 2005 finding and award. He also ratified and made applicable to the fund the June 24, 1988 and September 30, 2005 findings and awards. The order issued against Raymark went unpaid. On October 25, 2006, the commissioner issued a supplemental order directing the fund to pay the plaintiff pursuant to § 31-355. On November 14, 2006, the fund filed a petition for review with the board. On November 20, 2006, the plaintiff filed a motion to dismiss the fund’s petition for review. In its November 28, 2007 opinion, the board granted the plaintiffs motion to dismiss, and this appeal timely followed. Further facts will be put forth as necessary.

“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Whe[n] ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Internal quotation marks omitted.) Kuehl v. Z-Loda Systems Engineering, Inc., 265 Conn. 525, 532, 829 A.2d 818 (2003).

Whether § 31-301 precludes the fund from timely appealing from the supplemental order directing it to compensate the plaintiff in the present case “raises a question of statutory construction, which is a [question] of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . .

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextua! evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Hees v. Burke Construction, Inc., 290 Conn. 1, 10, 961 A.2d 373 (2009).

Our analysis begins, therefore, with the language of the relevant provisions. General Statutes § 31-301 (a) provides in relevant part that “[a]t any time within twenty days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board . . . .” Section 31-301 (e) provides further that “[t]he procedure in appealing from an award of the commissioner shall be the same as the procedure employed in an appeal from the Superior Court to the Supreme Court, where applicable. . . .” Last, we note the mandate of General Statutes § 31-300 that “[i]f no appeal from the decision is taken by either party within twenty days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the Superior Court. ...”

In resolving this issue, “we are mindful that the [workers’ compensation] act indisputably is a remedial statute that should be construed generously to accomplish its purpose. . . . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers’ compensation. . . . Accordingly, [i]n construing workers’ compensation law, we must resolve statutory ambiguities or lacunae in a manner that will further the remedial purpose of the act. . . . [T]he purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes.” (Internal quotation marks omitted.) Deschenes v. Transco, Inc., 288 Conn. 303, 314-15, 953 A.2d 13 (2008). With these precepts in mind, we turn to the matter under review.

At issue here is the timeliness of the fund’s appeal to the board from the commissioner’s supplemental order directing it to compensate the plaintiff. Prior to and leading to that order, there were three separate findings and awards issued by commissioners in this case: the first was issued by the commissioner for the fourth district, Frank J. Verrilli, on June 24, 1988, who found, inter alia, that the plaintiff was entitled to workers’ compensation benefits under General Statutes (Rev. to 1989) § 31-301; the second was issued on September 30,2005; and the last was issued on September 29, 2006. Although it is reasonable that the fund would not have immediately appealed from the finding and award issued in 1988 in which it was not involved, the fund, though cited into the matter in 2002, failed to appeal timely from either of the subsequent findings and awards even though it admitted before this court during oral argument that it had a “bone to pick” with each finding and award upon issuance. The fund also did not attempt to preserve its right to appeal from either finding and award rendered after it was cited into the proceedings by filing with the commissioner notice of intent to appeal as prescribed under Practice Book § 61-5. The fund now contends that because no order was specifically issued against it until October 25, 2006, it can challenge the order itself and, in so doing, assail each of the preceding findings and awards through its appeal from that order. We disagree.

Our Supreme Court has stated that “[i]t has long been accepted that a system of laws upon which individuals, governments and organizations rely to resolve disputes is dependent upon according finality to judicial decisions. ... [A] party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.” (Citation omitted; internal quotation marks omitted.) Marone v. Waterbury, 244 Conn. 1, 11, 707 A.2d 725 (1998). The court concluded that “[principles of finality are equally applicable to administrative decisions, such as workers’ compensation awards, that are appealable .... Both employers and their injured employees must be able to depend on the finality of administrative decisions and the appeals taken therefrom in order to regulate their future behavior.” Id., 12-13. Furthermore, “ [w]hether a judgment is final depends upon the governing statute[s].” Id., 12. Also, “while workers’ compensation awards may bear some resemblance to interlocutory decrees, [however] that similarity does not mean that such an award is, in fact, interlocutory. For example, a workers’ compensation award conclusively establishes the employer’s liability and precludes relitigation of that issue in a subsequent action brought in a court of general jurisdiction.” Id., 13-14.

In this appeal, we are presented with a procedural posture that is the converse, in a sense, of the usual scenario in which the finality of a commissioner’s decision is examined for a determination of whether that decision is a final judgment for the purposes of an appeal. Generally, these questions of finality arise in a context involving issues revolving around a subsequent necessary remand of an award from the board to the commissioner. See Hunt v. Naugatuck, 273 Conn. 97, 104, 868 A.2d 54 (2005) (when remand of matter to commissioner for further proceedings necessary, finality of board’s decision called into question). In this appeal, we are faced with the same questions of finality involving not a remand but a then prospective decision of the commissioner that has since occurred—the issuance of the supplemental order directing the fund to compensate the plaintiff. Levarge v. General Dynamics Corp., 282 Conn. 386, 390, 920 A.2d 996 (2007), a workers’ compensation case, though interpreting General Statutes §§ 31-301a and 31-301b, concisely sets out the usual context when such issues arise and the method utilized in resolving those issues and is instructive for our purposes.

In Levarge, the issue was “whether the decision of the . . . board . . . which affirmed the decision of the . . . commissioner that the defendants were collaterally estopped from relitigating the issue of causation, constitutes a final judgment or an otherwise appealable interlocutory order, thereby impheating [the court’s] subject matter jurisdiction.” Levarge v. Dynamics Corp., supra, 282 Conn. 387. After relating the facts and circumstances present, the court set forth the governing legal principles. Id., 390. The court stated that “the Appellate Court’s review of disputed claims of law and fact ordinarily must await the rendering of a final judgment by the [board]. . . . When the remand of a matter to the commissioner for further proceedings is necessary, the finality of the board’s decision is called into question .... In such circumstances, [t]he test that determines whether such a decision is a final judgment turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed. . . . This rule is an application of the more general final judgment principle that an otherwise interlocutory order is appealable [when] (1) it terminates a separate and distinct proceeding, or (2) so concludes the rights of the parties that further proceedings cannot affect them.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id. We conclude that these principles are applicable to this appeal, in part, because the mandates of the more general final judgment principles require it.

Levarge is also helpful to our analysis for its application of these principles to the facts and circumstances the court faced there. First, the court established that on remand, under the applicable statute, the commissioner had to apportion liability for the plaintiffs injuries between two insurers and the employer. Then, as a result, the court concluded that it was compelled to “determine whether apportionment constitutes a ministerial act or will require the exercise of independent judgment and the taking of additional evidence.” Id., 391. After interpreting the applicable statutes, the court concluded that, generally, “if the commissioner awards benefits, and there is a question as to the extent of liability of prior employers or successive insurers for the compensable injury, the commissioner must apportion liability among these employers or insurers within a reasonable period of time after the initial award.” Id. The court found that the record revealed that no such apportionment had taken place and that on remand the apportionment must be done. Id. The court then concluded that “[t]his determination will require a proceeding before the commissioner involving the production of evidence by all parties and a review of various medical and employment records. This court long has held that such a determination on remand will require the commissioner’s exercise of independent judgment and certainly will not be ministerial in nature.” Id., 392.

We now must determine, under the circumstances, whether the October 25, 2006 supplemental order directing the fund to compensate the plaintiff resulted from further proceedings that were merely ministerial in nature, thus making the September 29, 2006 finding and award an appealable final judgment. See id., 390. Here, there was not the exercise of independent judgment or discretion and the taking of additional evidence on the part of the commissioner in regard to the issuing of the supplemental order against the fund. The commissioner, prior to issuing its supplemental order against the fund had to determine only one matter: whether Raymark compensated the plaintiff in the intervening days since the September 29, 2006 finding and award. This is so because in the September 30, 2005 finding and award, the commissioner had dismissed the claims against The Hartford, General Reinsurance and Zurich and found that the commission had no jurisdiction to determine the association’s liability. Unlike in the usual circumstance when this court is called on to determine if a decision of the board is an appealable final order, here the “further proceeding” has already occurred. That is, we are not called on to ascertain what the commissioner will do on remand but to determine what the commissioner did do and was required to do when he issued his supplemental order. There is nothing in the record to indicate that the commissioner in the proceeding that led to the issuance of the supplemental order exercised independent judgment or discretion and took evidence. More importantly, there is nothing to indicate that the commissioner was required to exercise independent judgment or discretion and to take evidence.

The record reveals that Raymark had been in bankruptcy status for many years prior to the issuance of the order. It was precluded from compensating the plaintiff as a result, and the plaintiff was barred from seeking any recovery from Raymark whatsoever, regardless of the huge profits it was making. We find compelling to the determination that the proceeding was merely ministerial the language of the bankruptcy order granting the plaintiff a relief from stay that was part of the record before the commissioner in the proceeding leading to the issuance of the supplemental order. The amended order, issued on January 5, 2006, provided in relevant part: “The Connecticut Workers’ Compensation Commission is authorized to enter an order/award directly against debtors, Raymark ... in order to properly trigger the effect of ... § 31-355 for the purpose of allowing the movants to collect their duly awarded workers’ compensation benefits from the [fund]. The movants shall not seek to collect any damages, settlements, judgments and/or benefits from the debtors, Raymark ... or Raymark Corporation . . . individually or from the bankruptcy estate, and/or the Raytech Asbestos Personal Injury Trust . . . that are or may be awarded in the Workers’ Compensation Commission, but may seek, as allowed by law and consistent with this order, to collect said damages, settlements, judgments and/or benefits from the [fund].” See footnote 12. Simply stated, the record on which the commissioner relied reveals that at the time of the issuance of the order directing the fund to compensate the plaintiff, the plaintiff was precluded from seeking recovery from Raymark, and Raymark was precluded from compensating the plaintiff.

In light of Raymark’s prolonged bankruptcy, the express provisions of the Bankruptcy Court’s order granting the relief from automatic stay, the dismissal, more than one year prior, of all the defendant insurance companies and the remedial nature of the workers’ compensation scheme, we conclude that the commissioner’s issuance of the supplemental order against the fund was a ministerial act. The facts and circumstances of this matter removed from the commissioner any requirement of the exercise of independent judgment or discretion. The commissioner’s role in issuing the order was merely the fulfillment of a function akin to the application of a simple mathematical formula. See Smith v. Yurkovsky, 265 Conn. 816, 820, 830 A.2d 743 (2003) (holding that remand requiring commissioner to perform basic mathematical calculation is ministerial and does not require exercise of independent judgment or discretion); Szudora v. Fairfield, 214 Conn. 552, 557, 573 A.2d 1 (1990) (holding that because compliance with compensation review division’s remand order required only “a ministerial, noncontroversial compilation of salary information retrievable from an existing computer data bank” already in evidence, decision of compensation review division was appealable final judgment).

As a result of concluding that the September 29, 2006 finding and award was final for the purposes of an appeal by the fund, it is clear that the petition for review was not filed within the statutory mandate of § 31-301. In cases in which a party is represented by counsel, such as this case, the twenty day appeal period prescribed by § 31-301 (a) begins to run on the date that notice of a commissioner’s decision is sent to the party’s counsel. See Schreck v. Stamford, 250 Conn. 592, 600-601, 737 A.2d 916 (1999). The fund does not contend, nor does the record reflect, that notice of the September 29, 2006 finding and award was sent to it at a point in time that would bring its petition for review within the scope of § 31-301, and we will not here assume such a circumstance.

The record also reveals, and the parties do not dispute, the timeliness of the plaintiffs motion to dismiss, which was filed three days after the fund’s petition for review was filed with the board. Thus, because we conclude that the fund’s petition for review was untimely and that the plaintiffs motion to dismiss was timely, we conclude that the board dismissed properly the fund’s appeal.

The decision of the workers’ compensation review board is affirmed.

In this opinion GRUENDEL, J., concurred.

LAVINE, J.,

dissenting. I respectfully dissent from the majority opinion, which concludes that the workers’ compensation review board properly dismissed the appeal of the second injury fund (fund). Until the workers’ compensation commissioner (commissioner) ordered the fund to pay the plaintiff, Lovie Dechio, the fund was not aggrieved, and there was no final judgment from which it could appeal. In other words, because the fund was under no obligation to pay the plaintiff until ordered to do so, there was no reason, or necessity, for the fund to file an appeal until the supplemental order was issued. The fact that the fund had reason to expect that such an order would be issued does not change my conclusion.

The following details of the procedural history are relevant to the fund’s appeal. On September 30, 2005, the commissioner issued a finding and award in which he found, among other things, that the defendant Raymark Industries, Inc. (Raymark), had not paid the plaintiff, as it had filed numerous petitions in bankruptcy. The commissioner also found that Raymark “continues to be in a bankruptcy mode and continues to be in business, making huge profits.” The plaintiff was granted relief from the bankruptcy stay to pursue a claim against the fund. Later, the fund was impleaded over its objection. The commissioner paraphrased General Statutes § 31-355, stating that “prior to an entry of an award against the [fund], an order first must be issued against the uninsured employer.” The commissioner found that § 31-355 “does not apply in this matter. The undersigned [commissioner] is precluded from issuing an award against the [fund] because an order must first issue against the [employer] of record. An order cannot issue against the [employer] because of its bankruptcy status. . . . Once [Raymark] is out of bankruptcy or if a relief from stay is issued directly against it, the undersigned will then entertain any motions or requests for orders against it prior to any order under ...[§] 31-355.” The commissioner found the compensation rate to be $224.93 and stated that “[t]he matter shall remain open subject to future hearings at the request of the parties . . . .”

On September 29, 2006, the commissioner issued another finding and award in which he ordered Raymark to pay all benefits noted in the October 3, 2005 finding and award. The commissioner also stated: “In the event that [Raymark] fails to pay this claim within [twenty] days, counsel for the [plaintiff] is to contact [the commissioner’s] office so that a supplemental finding and award can be issued against the [fund] pursuant to . . . [§] 31-355.”

I agree with the majority that the resolution of the fund’s appeal turns on the construction of § 31-355. Our workers’ compensation scheme is in derogation of the common law; see Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937) (“the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope”); and the workers’ compensation commission must act strictly within its authority. Nationwide Mutual Ins. Co. v. Allen, 83 Conn. App. 526, 532, 850 A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d 562 (2004). General Statutes § 31-355 (b) provides in relevant part that “[w]hen an award of compensation has been made under the provisions of this chapter against an employer who fail[s] ... or is unable to pay . . . and whose insurer failjs] ... or is unable to pay . . . such compensation shall be paid from the Second Injury Fund. The commissioner, on a finding of failure or inability to pay compensation, shall give notice to the Treasurer of the award, directing the Treasurer to make payment from the fund. . . .” (Emphasis added.)

The question is whether the fund was aggrieved by the commissioner’s finding and award dated September 29, 2006, when the commissioner ordered Raymark to pay the plaintiff the benefits the commissioner found that she was due. “To be entitled to invoke the judicial process, a party must have suffered an aggrievement.” Kelly v. Dearington, 23 Conn. App. 657, 660, 583 A.2d 937 (1990). The fund was not aggrieved by the September 29, 2006 finding and award. Requiring the fund to pay the plaintiff was contingent on Raymark’s failing to pay and the commissioner’s issuing a supplemental order. In fact, the commissioner ordered the plaintiff to return for a supplemental order if she was not paid. Raymark’s failure to pay was a condition precedent to the fund’s being ordered to pay. The commissioner’s ruling on the request for a supplemental order could not be ministerial because the commissioner was required to make a finding as to whether Raymark had paid the plaintiff before he could issue a supplemental order.

Hummel v. Marten Transport, Ltd., 282 Conn. 477, 923 A.2d 657 (2007), provides guidance to the resolution of the issue in this case. Hummel concerns the application of the final judgment rule to appeals from the board under General Statutes § 31-301b. Hummel v. Marten Transport, Ltd., supra, 479. General Statutes § 31-301b provides that “[a]ny party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the Appellate Court.” Our Supreme Court stated that “the Appellate Court’s review of disputed claims of law and fact ordinarily must await the rendering of a final judgment by the [board]. . . . When the board remands a case to the commissioner for further proceedings in connection with the challenged award, the finality of the board’s decision is called into question .... In such circumstances, [t]he test that determines whether such a decision is a final judgment turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed. . . . Finally, because the existence of a final judgment is a jurisdictional prerequisite to an appeal, the reviewing court may dismiss the case on that ground even if the issue was not raised by the parties.” (Citations omitted; emphasis added; internal quotation marks omitted.) Hummel v. Marten Transport, Ltd., supra, 485.

Our Supreme Court “first imported a final judgment requirement into § 31-301b in Matey v. Estate of Dember, 210 Conn. 626, 556 A.2d 599 (1989). In Matey, the [fund] appealed from a decision of the compensation review [board], which affirmed the finding of the commissioner as to the fund’s liability to the claimant but remanded the case for further proceedings before the commissioner with respect to the amount of the award. . . . Although the claimant had not challenged the appealability of the board’s decision, [our Supreme Court] followed the holding of [Respasi v. Jenkins Bros., 16 Conn. App. 121, 546 A.2d 965, cert. denied, 209 Conn. 817, 550 A.2d 1085 (1988)], in concluding, first that only a final judgment is appealable under § 31-301b, and, second, that the fund’s appeal was premature in light of the board’s remand order directing the commissioner to conduct a further evidentiary hearing for the purpose of determining the correct amount of the award.” (Citation omitted.) Hummel v. Marten Transport, Ltd., supra, 282 Conn. 491-92.

The case here is procedurally distinct from Hummel as it does not concern a remand from the board to the commissioner. Nonetheless, the majority resolves the propriety of the board’s dismissing the fund’s appeal by concluding that the commissioner’s supplemental order was merely ministerial. I respectfully disagree. When deciding whether to issue a supplemental order as to the fund, the commissioner necessarily had to consider evidence as to whether Raymark, or its insurers, had paid the plaintiff benefits. The supplemental order was contingent on the completion of the following requirements pursuant to § 31-355: “(1) the substantive and procedural requirements of the act have been met; (2) the award against the employer has been entered; and (3) the employer and its insurer have failed to pay." (Emphasis added.) Matey v. Estate of Dember, 256 Conn. 456, 487-88, 774 A.2d 113 (2001) (Matey II). Implicitly and necessarily, the commissioner had to find that Raymark and its insurers had not paid the plaintiff within twenty days, as ordered, before the commissioner could issue the supplemental order. That finding required the taking of additional evidence, however slight. I simply do not agree that the commissioner’s issuance of the supplemental order is “akin to the application of a simple mathematical formula,” as the majority concludes.

Although the board here relied on Matey II to support its decision to dismiss the fund’s appeal, that case actually supports the fund’s position with respect to the timeliness issue. In Matey II, “the plaintiff repeatedly argued that the fund was barred from raising the jurisdictional claim on appeal to the board because it had not done so within [the appeal period] after the October 2, 1990 finding and award. That award, however, was not directed against the fund, but against Dember’s estate. An order against the fund was not entered until February 25, 1991, when the fund filed a timely motion to open.” (Emphasis added.) Matey v. Estate of Dember, supra, 256 Conn. 474; see also Coley v. Camden Associates, Inc., 243 Conn. 311, 314 n.4, 702 A.2d 1180 (1997) (“[t]he decision from which the fund appeals is separate and independent from the appeal to the board by the employer and the insurer”). The portion of Matey II on which the board relied, Matey v. Estate of Dember, supra, 488-94; concerns the merits of the fund’s appeal in that case. It does not apply to the question of whether the appeal was timely.

I concur with the majority’s assertion that the Workers’ Compensation Act, General Statutes § 31-275 et seq., “is a remedial statute that should be construed generously to accomplish its purpose.” Deschenes v. Transco, Inc., 288 Conn. 303, 314, 953 A.2d 13 (2008). The remedial nature of the statute, however, does not provide a basis for deciding this case. The commissioner’s finding and award of September 29, 2006, gave Raymark, or its insurers, twenty days in which to pay the plaintiff benefits. If the benefits were not paid, the plaintiff could return to the commissioner to request a supplemental award. Twenty days is the same period of time in which the fund could appeal. See General Statutes § 31-301. The fund could not be expected to know whether Raymark would pay within the twenty days. After all, the commissioner found that Raymark was still in business and making “huge” profits.

For the foregoing reasons, I respectfully dissent.

       General Statutes § 31-301 (a) provides in relevant part: “At any time within twenty days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board . . . .”

       See Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 644-50, 729 A.2d 212 (1999); 1 A. Sevarino, Connecticut Workers’ Compensation After Reforms (3d Ed. 2002) § 8.00, pp. 1285-1408.

       Section 31-354-12 of the Regulations of Connecticut State Agencies provides: “Payment [to a claimant under § 31-355 of the General Statutes] of compensation shall be paid from the Fund provided: (a) A formal hearing is held and the Second Injury Fund, the Attorney General’s Office, and Workers’ Compensation Department, were noticed to attend, (b) A finding and award is granted against the employer after notice to the employer, (c) Ten days have passed from the date of notice of the award to the employer and the claimant has not received payment and the employer has not instituted an appeal, (d) The claimant requests and is granted a supplemental order of payment against the Fund.” (Emphasis added.)

       General Statutes § 31-355 (b) provides in relevant part: “When an award of compensation has been made under the provisions of this chapter against an employer who failed, neglected, refused or is unable to pay any type of benefit coming due as a consequence of such award or any adjustment in compensation required by this chapter, and whose insurer failed, neglected, refused or is unable to pay the compensation, such compensation shall be paid from the Second Irqury Fund. The commissioner, on a finding of failure or inability to pay compensation, shall give notice to the Treasurer of the award, directing the Treasurer to make payment from the fund. ...”

        Stec involves the fund, as well as Raymark Industries, Inc., and the same underlying issue of the appellant filing an appeal outside of the twenty day time period set out in General Statutes § 31-301 (a). This case differs from Stec in that here, the appellee did file a timely motion to dismiss the fund’s late appeal.

       Raymark was formerly known as Raybestos-Manhattan, Inc.

       General Statutes § 31-306 (a) provides in relevant part: “Compensation shall be paid to dependents on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease . . .

       Section 362 (a) of title 11 of the United States Code provides that the filing of a bankruptcy petition with the Bankruptcy Court “operates as a stay, applicable to all entities, of . . . the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the [bankruptcy case], or to recover a claim against the debtor that arose before the commencement of [the bankruptcy case].” The Bankruptcy Court has the power, however, to grant relief from the automatic stay. See 11 U.S.C. § 362 (d) through (g).

       The association is a nonprofit legal entity established by General Statutes § 38a-839 and governed by the Connecticut Insurance Guaranty Association Act, which is codified at General Statutes § 38a-836 et seq. The association was established to reimburse, to a limited extent, covered claims against insolvent insurers. Here, the association, pursuant to its statutory mandate, was the successor of the Ideal Mutual Insurance Company, which insured Raymark’s blue collar employees in the early 1980s and was later acljudicated insolvent.

       These formal hearings took place on December 3, 2002, and March 26, August 13 and November 19, 2003, and April 26 and June 24, 2004.

       See General Statutes § 31-310.

       The Bankruptcy Court issued an amended order for relief from the automatic stay on January 5, 2006. Both this amended order and the December 23,2005 order, were entered as evidence in the September 27,2006 formal hearing before the commissioner, which directly preceded the September 29, 2006 finding and award. The January 5, 2006 order from the Bankruptcy Court provides in relevant part: “The Connecticut Workers’ Compensation Commission is authorized to enter an order/award directly against debtors, Raymark ... in order to properly trigger the effect of ... § 31-355 for the purpose of allowing the movants to collect their duly awarded workers’ compensation benefits from the [fund]. The movants shall not seek to collect any damages, settlements, judgments and/or benefits from the debtors, Raymark ... or Raymark Corporation . . . individually or from the bankruptcy estate, and/or the Raytech Asbestos Personal Ipjuiy Trust . . . that are or may be awarded in the Workers’ Compensation Commission, but may seek, as allowed by law and consistent with this order, to collect said damages, settlements, judgments and/or benefits from the [fund].”

       Zurich and The Hartford each filed a motion to dismiss, as well, and subsequently filed supporting memoranda of law. General Reinsurance also filed a motion to dismiss, but it was untimely and without a supporting memorandum of law.

       We note that General Statutes § 31-301 (a) was amended in 2007 by Public Acts 2007, No. 07-31, “An Act Concerning The Workers’ Compensation Medical Practitioners’ Fee Schedule and Time For Piling A Workers’ Compensation Appeal.” This legislation added the following language to § 31-301 (a) effective October 1, 2007: “If a party files a motion subsequent to the finding and award, order or decision, the twenty-day period for filing an appeal of an award or an order by the commissioner shall commence on the date of the decision on such motion.”

       The fund was not a party to this proceeding, as the record reveals that Raybestos-Manhattan (Raymark’s predecessor) was solvent at that time.

       This finding and award determined, inter alia, the compensation rate to be paid to the plaintiff, as well as disposed of various claims the fund made against The Hartford, Zurich, General Reinsurance and the association.

       Practice Book § 61-5 (a) provides in relevant part: “An appeal of a judgment. . . may be deferred until the judgment that disposes of the case for all purposes and as to all parties is rendered. ... [A] notice of intent to appeal must be filed in order to defer the taking of an appeal until the final judgment that disposes of the case for all purposes and as to all parties is rendered . . .
      “(2) when the deferred appeal is to be taken from a judgment that disposes of only part of a complaint, counterclaim, or cross complaint but nevertheless disposes of all causes of action in that pleading brought by or against a particular party or parties.” Moreover, this section of the rules of appellate procedure is made applicable to appeals to the board from decisions of a commissioner by General Statutes § 31-301 (e), which provides in relevant part: “The procedure in appealing from an award of the commissioner shall be the same as the procedure employed in an appeal from the Superior Court to the Supreme Court, where applicable. ...”

       We also note that “[t]he procedure In appealing from an award of the commissioner [to the board] shall be the same procedure employed in an appeal from the Superior Court to the Supreme Court, where applicable. . . General Statutes § 31-301 (e). The conclusion is further bolstered by the language of General Statutes § 31-300, which provides in relevant part: “If no appeal from the decision [of the commissioner] is taken by either party within twenty days thereafter, such award shall be final [and enforceable].”

       Practice Book § 66-8 provides in relevant part: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed . . . within ten days after the filing of the appeal . . . .”

       The commissioner found that the fund objected to being made a party to the plaintiffs claim, “contending, among other things, that there was insurance coverage in place and that . . . General Statutes [§] 31-355 does not apply. It further contends that the June 24, 1988 finding and award was not proper.”


source: Caselaw Access Project

author: GRUENDEL, J. LAVINE, J.,

license: Public Domain

text:
    RICHARD STEC ET AL. v. RAYMARK INDUSTRIES, INC., ET AL.
    (AC 29346)
    Gruendel, Lavine and West,, Js.

      Argued December 3, 2008
    officially released April 28, 2009

      J. Sarah Posner, assistant attorney general, with whom were Philip M. Schulz, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant second injury fund).

      Lucas D. Strunk, for the appellee (defendant Hartford Insurance Group).

      Eric L. Sussman, for the appellee (defendant General Reinsurance Corporation).

      Christopher Meisenkothen, for the appellee (plaintiff June Stec).

      Joseph J. Passaretti, Jr., with whom, on the brief, was Eric W. Schoenberg, for the appellee (defendant Connecticut Insurance Guaranty Association).

      David J. Weil, for the appellee (defendant National Union Fire Insurance Company).
   Opinion

GRUENDEL, J.

This case calls on us to address an unresolved area of workers’ compensation procedure. Specifically, we must determine whether the filing of an appeal from the decision of a compensation commissioner to the workers’ compensation review board (board) outside of the statutoiy time period for filing such an appeal deprives the board of subject matter jurisdiction. Put another way, we must decide whether an appellee can waive timeliness of filing a workers’ compensation appeal.

In Dechio v. Raymark Industries, Inc., 114 Conn. App. 58, 968 A.2d 450 (2009), also decided today, we held that a party to a workers’ compensation action that has participated fully in the proceedings that resulted in the issuance of a finding and award by the commissioner must appeal to the board from that finding and award rather than from any subsequent order. Because the appeal to the board in Dechio was filed more than twenty days after the applicable finding and award was issued, we concluded that the appeal was not timely under General Statutes § 31-301 (a) and affirmed the board’s dismissal of the appeal. The present case involves the same defendants and the same underlying issue—the appellant filed its appeal outside of the twenty day period set forth in § 31-301 (a). This case differs from Dechio, however, in that the appellee in the present case did not file a timely motion to dismiss the appeal. But for this difference, the two cases would command the same result.

Because there was no timely motion to dismiss the appeal, we must determine whether the time limitation on filing an appeal set forth in § 31-301 (a) implicates the board’s subject matter jurisdiction to hear the appeal or if that time limitation is waivable by the parties. The board concluded that the timeliness of an appeal does implicate its subject matter jurisdiction and thus dismissed the untimely appeal for want of jurisdiction. We disagree with the board’s holding and conclude that failure to file an appeal from a commissioner’s finding and award in a timely manner does not deprive the board of subject matter jurisdiction. We therefore reverse the decision of the board dismissing the appeal.

The facts underlying this case are largely undisputed. In 1986, the plaintiffs, Richard Stec, now deceased, and June Stec, his surviving spouse, filed a workers’ compensation claim alleging that the decedent contracted lung cancer as a result of exposure to asbestos during the course of his employment with the defendant Raymark Industries, Inc. (Raymark). Raymark has been in bankruptcy proceedings since 1986, and the defendant second injury fund (fund) was cited in as a party to the workers’ compensation claim because of its potential liability pursuant to General Statutes § 31-355.

Hearings were held before the compensation commissioner between 2002 and 2005, and on October 3, 2005, the commissioner issued a finding and award. In that finding and award, the commissioner found, inter alia, that Richard Stec “sustained a compensable work-related lung injury as a result of being exposed to asbestos while working for [Raymark],” and that such injury led to his disability and ultimate death. The commissioner also found that he was “precluded from issuing an award against the second injury fund . . . because an order must first issue against [Raymark] as the employer of record. An order cannot issue against [Raymark] because of its bankruptcy status.” The finding and award went on to indicate that if relief from the automatic bankruptcy stay were to be issued by the Bankruptcy Court, the commissioner would entertain requests for orders against both Raymark and the fund.

Subsequent to that October 3,2005 finding and award, the Bankruptcy Court issued relief from the automatic stay in the Raymark bankruptcy case. Thereafter, on September 29, 2006, the commissioner issued a new finding and award ordering Raymark to pay “all the chapter 568 benefits noted in the October 3,2005 finding and award.” On October 25, 2006, the commissioner issued an order to the fund for payment of the benefits under the October 3, 2005 finding and award.

The fund appealed to the board on November 13, 2006. National Union Pire Insurance Company, a defendant and appellee in this case, filed a motion to dismiss the appeal on December 5, 2006, claiming that the fund was required to appeal to the board within twenty days of the October 3, 2005 finding and award. In response, the fund argued that the appeal was timely, as it was filed within twenty days of the issuance of the October 25, 2006 order. It also argued that the motion to dismiss the appeal was filed outside of the ten day period in which such motions must be filed pursuant to Practice Book § 66-8, thereby waiving the issue of timeliness. The board dismissed the appeal for lack of subject matter jurisdiction, holding that the appeal was filed late and that a motion to dismiss for lack of subject matter jurisdiction may be filed at any time. The fund appeals to this court from that dismissal.

In light of our holding in Dechio v. Raymark Industries, Inc., supra, 114 Conn. App. 58, the dispositive issue on appeal is whether the failure to file an appeal to the workers’ compensation review board within the twenty day period set forth in § 31-301 (a) deprives the board of its subject matter jurisdiction or whether timely filing may be waived by the parties. “Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.” (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764-65, 628 A.2d 1303 (1993). “[A] subject matter jurisdictional defect may not be waived ... [or jurisdiction] conferred by the parties, explicitly or implicitly. . . . [T]he question of subject matter jurisdiction is a question of law . . . .” (Internal quotation marks omitted.) State v. Daly, 111 Conn. App. 397, 401, 960 A.2d 1040 (2008). Once the board’s subject matter jurisdiction over an appeal is questioned, either by a party or by the board itself, the jurisdictional question must be resolved before the board may address the substantive issues presented by the appeal. See id.; Cleveland v. U.S. Printing Ink, Inc., 21 Conn. App. 610, 612, 575 A.2d 257 (1990), aff'd, 218 Conn. 181, 588 A.2d 194 (1991). “The question of subject matter jurisdiction may be raised at any time.” (Internal quotation marks omitted.) Remax Right Choice v. Aryeh, 100 Conn. App. 373, 377, 918 A.2d 976 (2007).

These established precepts indicate that if filing a late appeal from the compensation commissioner’s finding and award implicates the board’s subject matter jurisdiction over the appeal, then the timeliness of the appellee’s motion to dismiss would be immaterial. If, conversely, the failure to file a timely appeal does not implicate subject matter jurisdiction, the board would have discretion to hear a late appeal if it is not the subject of a timely motion to dismiss. This issue is complicated by decades of imprecise and inconsistent precedent and by numerous amendments to the statute governing the appeal period. As such, we must analyze the case law and the histoiy of the statute to resolve the question before us.

I

HISTORY AND PRECEDENT

The General Assembly passed Connecticut’s first workers’ compensation statute in 1913. Public Acts 1913, No. 138. At that time in our history, “[t]he almost universal introduction of machinery, with its peculiar dangers” necessitated a change in the common-law approach to compensating injured employees. Report, Conn. State Comm’n on Compensation for Industrial Accidents, p. 3 (1912). The pressure to introduce a comprehensive workers’ compensation statute was part of a growing movement. Jurisdictions around the country were passing workers’ compensation legislation for the first time—substantially all statutes on the subject in the United States had been in effect for fewer than three years. Id., p. 2. “Under the statute, the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer’s liability to the statutory amount. ... In return, the employee is compensated for his or her losses without having to prove liability. . . . The intention of the framers of the [Workers’ Compensation Act, General Statutes § 31-275 et seq. (act)] was to establish a speedy, effective and inexpensive method for determining claims for compensation.” (Citation omitted.) Doe v. Yale University, 252 Conn. 641, 672, 748 A.2d 834 (2000). Although the act has been amended and rewritten on numerous occasions; see, e.g., Public Acts 1961, No. 491; Public Acts 1972, No. 108; Public Acts 1979, No. 79-540; Public Acts 2001, No. 01-22; much of its purpose, spirit and language, particularly in the area of appeals from a commissioner’s finding and award, have remained largely unchanged.

Section twenty-seven of the original 1913 act, which was codified as § 5366 of the General Statutes, provides in relevant part: “At any time within ten days after entry of such finding and award by the commissioner either party may appeal therefrom to the superior court for the county in which the injury was sustained. . . .’’In Murphy v. Elms Hotel, 104 Conn. 351, 133 A. 106 (1926), our Supreme Court was called upon to construe § 5366, the predecessor to § 31-301. In Murphy, the court addressed whether the trial court properly dismissed a late appeal from the finding and award of a compensation commissioner, despite a defect in the appellee’s motion to dismiss the appeal. The Supreme Court held that “failure to take the appeal [from a finding and award by the commissioner] within the ten-day period did not make the appeal void, but merely voidable.” Murphy v. Elms Hotel, supra, 353. It concluded that “[t]he motion to dismiss the appeal because not seasonably taken should have been denied.” Id., 354. This language illustrates that the provision limiting the time period in which a party may appeal from the commissioner’s finding and award may be waived by the parties. Therefore, Murphy stands for the proposition that the statutory time period for appealing from the finding and award of a workers’ compensation commissioner cannot be construed to limit the subject matter jurisdiction of the reviewing tribunal. Cf. Dowling v. Slotnik, 244 Conn. 781, 877, 712 A.2d 396 (“the requirement of subject matter jurisdiction cannot be waived by any party” [internal quotation marks omitted]), cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).

Although Murphy has never been overturned by our Supreme Court, the applicable section of the workers’ compensation statute, now General Statutes § 31-301, has been amended many times. For example, the entire workers’ compensation scheme was reorganized in 1961. That amendment changed the textual organization of the statute, though much of the underlying procedure and law remained unchanged. See Public Acts 1961, No. 491. In another example, the statute was amended several times between 1972 and 1979. During that period, the General Assembly repeatedly changed the body to which an appeal from a commissioner’s finding and award must be taken, eventually settling on the compensation review division—the precursor to the board. See Public Acts 1972, No. 108, § 6 (appeals from compensation commissioner taken to Court of Common Pleas); Public Acts 1976, No. 76-436, § 231 (appeals from compensation commissioner to be taken to (Superior Court); Public Acts 1979, No. 79-540, § 3 (appeals from compensation commissioner to be taken to compensation review division, and procedure for such appeals same as appeals from Superior Court to Supreme Court). In 1991, the compensation review division was replaced, largely semantically, with the modem workers’ compensation review board. See Public Acts 1991, No. 91-339, § 20. In 2001, Public Acts 2001, No. 01-22, § 1, expanded the period in which a party may appeal from the decision of a compensation commissioner from ten days to twenty days.

At present, the statute provides in relevant part: “At any time within twenty days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner ... an appeal petition . . . .” General Statutes § 31-301 (a). Because the statute has been amended on so many occasions since its passage and our Supreme Court’s decision in Murphy, we must determine whether it has been altered to the extent that Murphy is no longer binding precedent. That consideration requires us to engage in statutory constmction in order to determine whether the failure to appeal in a timely manner from the decision of the commissioner deprives the board of subject matter jurisdiction.

Before engaging in that analysis, we note that matters are complicated by the fact that subsequent to the Supreme Court’s decision in Murphy, this court rendered several decisions that reached a conclusion contrary to Murphy. For example, in Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720, 667 A.2d 76 (1995), we noted that “[o]nce the board determines that an appeal is untimely it no longer has jurisdiction to address any remaining substantive claim.” In Cyr v. Domino’s Pizza, 45 Conn. App. 199, 203, 695 A.2d 29 (1997), this court again held that “[b]ecause the petition for review was untimely, the review board was without jurisdiction to address any remaining substantive claim.” These are but two in a line of cases indicating that the board lacks subject matter jurisdiction over a late appeal. Although at first blush this line of cases would appear to govern our disposition of the present appeal, these cases did not consider the binding effect of the Murphy opinion. Therefore, we are not bound by their holdings in the disposition of the present appeal.

The board also has held on numerous occasions that it lacks subject matter jurisdiction over a late appeal. In Orciari v. Labor Ready, Inc., No. 4702 CRB-5-03-8 (May 25, 2005), for example, the board stated: “When a petitioner fails to file an appeal within the statutorily prescribed time period the board loses subject matter jurisdiction of the matter and the appeal must be dismissed.” In Downer v. Mark TV Construction, Inc., No. 4462 CRB-3-01-11 (November 15, 2002), it similarly opined: “Under the law of the State of Connecticut, a party to a workers’ compensation case may appeal the award of a trial commissioner at any time within twenty days after the award is sent to the parties. . . . This board lacks jurisdiction to consider any appeal that is filed after the expiration of the statutory appeal period, even if it is only a few days late.” (Citations omitted.) In Garcia v. Tully, No. 4209 CRB-07-00-3 (March 1, 2001), the board indicated: “Initially, we must determine whether [this] appeal is timely, as this board lacks subject matter jurisdiction over late petitions for review.” Although we are not bound to follow the holdings of the board, we do “accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board.” (Internal quotation marks omitted.) Lafayette v. General Dynamics Corp., 255 Conn. 762, 770, 770 A.2d 1 (2001); see also Hartford v. Hartford Municipal Employees Assn., 259 Conn. 251, 270, 788 A.2d 60 (2002) (deference given to administrative board’s reasonable “time-tested interpretation” of statutory terms). Consequently, although not dispositive, these decisions inform our analysis. At the same time, however, the board’s construction of § 31-301 (a) appears to be in conflict with our Supreme Court’s holding in Murphy. Because that is the case, the board’s construction would be entitled to no deference.

II

STATUTORY CONSTRUCTION

In light of the multiple amendments to § 31-301 over the years since Murphy, and considering the incongruities between Murphy and the subsequent Appellate Court and board decisions, it is necessary for us to construe the statute in an attempt to determine whether § 31-301 (a) denies subject matter jurisdiction to the board in cases in which the appeal thereto is filed late. In Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 757, our Supreme Court set forth the standard for determining whether a time limitation on a right to appeal implicates subject matter jurisdiction. It stated: “Our cases regarding appellate time limitations have generally followed one of three lines of analysis. The first line of cases holds that, because the twenty day time limitation on appeals imposed by Practice Book § 4009 [now § 63-1] is not subject matter jurisdictional, we have discretion to hear a late appeal. . . . The rationale for this rule is that the twenty day period established by § 4009 [now § 63-1] is not a constitutionally or legislatively created condition precedent to the jurisdiction of this court. The source of the authority for the adoption of the rule lies in the inherent right of constitutional courts to make rules governing their procedure. . . . Such time constraints, which are created by the courts, can be waived by the courts.

“The second line of cases holds that time limitations on the right to appeal that are contained in statutes, rather than in the provisions of the Practice Book, are subject matter jurisdictional. . . . The rationale for this line of cases is that . . . appellate subject matter jurisdiction is created by statute, and we have no power to enlarge or circumscribe it. . . .

“The third line of cases holds, contrary to cases in the second line of cases, that some statutory time limitations on the right to appeal are discretionary, rather than jurisdictional. . . .

“[T]he proper analysis of a statutory time limitation on the right to appeal devolves into a question of statutoiy construction: did the legislature, in imposing the time limitation, intend to impose a subject matter jurisdictional requirement on the right to appeal? We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 762-64.

A

At the outset, we note that our construction of § 31-301 (a) is informed by the principle that “every presumption is to be indulged in favor of subject matter jurisdiction.” Sheff v. O’Neill, 238 Conn. 1, 15, 678 A.2d 1267 (1996). A clear indication of intent to limit subject matter jurisdiction is required to overcome this presumption. Sivilla v. Philips Medical Systems of North America, 46 Conn. App. 699, 703, 700 A.2d 1179 (1997).

We begin our analysis of the section’s construction with the language of the statute itself. See General Statutes § l-2z. The provision in question, § 31-301 (a), does not mention subject matter jurisdiction, and is thus vague as applied in the present case. Subsection (e), however, directs that “[t]he procedure in appealing from an award of the commissioner shall be the same as the procedure employed in an appeal from the Superior Court to the Supreme Court, where applicable. ...” When viewed in light of the fact that the procedure of this court and the Supreme Court permit discretion to hear a late appeal; Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 762-63; Practice Book § 60-2 (6); this provision demonstrates the intent of the drafters not to limit the subject matter jurisdiction of the board only to hear cases in which the appeal was timely filed.

That conclusion is bolstered by the legislative history of the 2001 amendment to the statute, which increased the time to appeal from ten days to twenty days. In the only substantive discussion of the amendment in the legislative records, David Schoolcraft, a workers’ compensation attorney and member of the workers’ compensation section of the Connecticut Bar Association, testified before the Judiciary Committee regarding the desirability of expanding the appeal period to twenty days for the purpose of “bringing the appeal period for workers’ compensation into line with the Superior Court, the traditional 20 days in the Practice Book.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 2001 Sess., p. 1148. This testimony further reflects an understanding by the committee responsible for the current incarnation of the section that the standards governing time for filing an appeal from a commissioner’s decision would be similar to those governing an appeal from the Superior Court. Cf. State v. Ledbetter, 240 Conn. 317, 337-39, 692 A.2d 713 (1997) (testimony before committee and comments of committee members indicate legislative purpose).

In addition, we note that the statute has been amended on numerous occasions subsequent to our Supreme Court’s 1926 pronouncement in Murphy. In each of these subsequent enactments, the underlying language of the time limitation has not been significantly changed or clarified. We may presume, therefore, that the action of the General Assembly in re-enacting the statute, including the clause in question, after the decision of the Supreme Court in Murphy, was done with knowledge of and in the light of that decision. See Turner v. Scanlon, 146 Conn. 149, 156, 148 A.2d 334 (1959) (action of legislature in amending statute regulating braking systems presumed to have been enacted in light of judicial decisions); see also Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 279, 610 A.2d 584 (1992) (“the legislature is presumed to be aware of judicial interpretations of a statute”). As such, the fact that the General Assembly failed to repudiate Murphy in its subsequent amendments to § 31-301 bolsters our conclusion that in addition to being binding precedent, Murphy's interpretation of the statute remains accurate.

B

There are, however, several arguments to be made that the proper construction of § 31-301 (a) would deprive the board of subject matter jurisdiction. First among these is the principle that “[b]ecause of the statutory nature of our workers’ compensation system, policy determinations as to what injuries are compensable and what jurisdictional limitations apply thereto are for the legislature, not the judiciary or the board, to make. . . . [T]he workers’ compensation commission, like any administrative body, must act strictly within its statutory authority .... It cannot modify, abridge, or otherwise change the statutory provisions under which it acquires authority unless the statutes expressly grant it that power.” (Citation omitted; internal quotation marks omitted.) Cantoni v. Xerox Corp., 251 Conn. 153, 160, 740 A.2d 796 (1999). This proposition, although entirely accurate, does not resolve the vagueness in the statute at issue. Although we acknowledge that the board may not act outside of its statutory authority, the statute does not explicitly limit the board’s authority or discretion to hear a late appeal. Rather, the statute merely sets forth procedural requirements for the parties to follow in filing an appeal. See Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 697 n.5, 529 A.2d 226 (1987) (time limitation not subject to waiver only if limitation jurisdictional or substantive). This analysis does not resolve the question regarding whether the language of the statute deprives the board of subject matter jurisdiction over a late appeal.

The next argument that might tend to indicate that § 31-301 (a) implicates the board’s subject matter jurisdiction involves the purpose of the legislature in enacting the workers’ compensation scheme in the first instance. The intent of the General Assembly undeniably was to provide for a speedy method for disposing of claims. Doe v. Yale University, supra, 252 Conn. 672. As such, there is an argument to be made that permitting late appeals would only prolong the process for determining those claims in derogation of that legislative intent. This argument is undermined by the fact that the workers’ compensation statute is remedial in nature and must be broadly construed in favor of compensating disabled employees. Evanuska v. Danbury, 285 Conn. 348, 358, 939 A.2d 1174 (2008). In the present case, the party filing a late appeal is liable for payments of the award, but it easily could be the injured employee. As such, a broad construction of the provision regarding the appeal period would provide the board with discretion to hear late appeals, rather than limit its jurisdiction, in order to achieve the remedial purpose of the act. In light of the foregoing, the correct construction of § 31-301 (a) would not preclude the board from hearing late appeals.

m

CONCLUSION

In Murphy v. Elms Hotel, supra, 104 Conn. 351, our Supreme Court held that the time limitation on an appeal from the finding and award of a workers’ compensation commissioner imposed by § 31-301 (a) does not deprive the appellate tribunal of subject matter jurisdiction over the appeal. We conclude that § 31-301 (a) has not been altered to the extent that the effect of Murphy has been abrogated. Consequently, it remains binding precedent that both the board and this court are required to follow.

Further, the language of the statute and its legislative history do not explicitly limit the board’s jurisdiction. Moreover, they indicate that appeals from a compensation commissioner are to follow the same procedure as appeals from the Superior Court, which likewise illustrates an intention not to limit the board’s subject matter jurisdiction. In addition, the canons that govern our construction of the Workers’ Compensation Act— namely, the presumption in favor of jurisdiction; see Sheff v. O’Neill, supra, 238 Conn. 15; a broad reading of the act; see Evanuska v. Danbury, supra, 285 Conn. 358; and the presumption that the General Assembly was aware of the Murphy decision when it enacted amendments to the section; see Caron v. Inland Wetlands & Watercourses Commission, supra, 222 Conn. 279—compel the same conclusion. Therefore, we conclude that § 31-301 (a) does not limit the board’s subject matter jurisdiction to hear a late appeal but, rather, provides the board with discretion to hear a late appeal when no timely motion to dismiss has been filed.

The decision of the workers’ compensation review board is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion WEST, J., concurred.

LAVINE, J.,

concurring. I concur that the failure to file a timely appeal from the finding and award of the workers’ compensation commissioner (commissioner) to the workers’ compensation review board (board) does not deprive the board of jurisdiction. That question of whether a late appeal from the commissioner was void or merely voidable was decided by our Supreme Court more than eighty years ago in Murphy v. Elms Hotel, 104 Conn. 351, 353, 133 A. 106 (1926), and affirmed under the current form of the statute in Matey v. Estate of Dember, 256 Conn. 456, 744 A.2d 113 (2001).

       Raymark was formerly known as Raybestos-Manhattan, Inc.

       In addition to Raymark and the fund, the other defendants are the insurers that might have been liable for payment of the workers’ compensation claim: General Reinsurance Corporation, National Union Fire Insurance Company, The Hartford Insurance Group, Connecticut Insurance Guaranty Association and Zurich North America. The fund is the only appellant in the present appeal. All other parties, both plaintiffs and defendants, are adverse to the fund.

       Section 362 (a) of title 11 of the United States Code provides that the filing of a bankruptcy petition with the Bankruptcy Court “operates as a stay, applicable to all entities, of . . . the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the [bankruptcy case], or to recover a claim against the debtor that arose before the commencement of [the bankruptcy case].” The Bankruptcy Court, however, has the power to grant relief from the automatic stay. See 11 U.S.C. § 362 (d) through (g).

       Indeed, the Supreme Court recently cited Murphy for this holding. In Matey v. Estate of Dember, 256 Conn. 456, 744 A.2d 113 (2001), the court addressed an issue regarding whether the appellant’s claims were preserved properly. In doing so, it stated: “[E]ven if we were to assume that the fund could have appealed the October 2, 1990 award, we conclude that the plaintiff waived any claim of untimeliness by failing to file a motion to dismiss the fund’s motion to open the February 25, 1991 order. See Murphy v. Elms Hotel, [supra, 104 Conn. 353] (failure to take appeal within ten day period set forth in predecessor to General Statutes § 31-301 did not render appeal void, but merely voidable).” Matey v. Estate of Dember, supra, 474-75. Although the procedural posture of Matey was significantly more complex than that of the present case, the court’s citation of Murphy should be read as an indication that Murphy remains binding precedent.

       In support of that conclusion, the court cited the Supreme Court case, Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 363 A.2d 1085 (1975). This reliance on Chieppo, however appears misplaced. In Chieppo, the defendants erroneously appealed to the Superior Court, rather than to the Court of Common Pleas, which had jurisdiction to hear appeals from a commissioner at the time. The Superior Court transferred the case to the Court of Common Pleas, but that latter court dismissed the case. The Supreme Court affirmed, indicating that because the Superior Court was without jurisdiction over the appeal, its action transferring the appeal to the Court of Common Pleas was without effect. The court then began an analysis discussing the Superior Court’s statutory jurisdiction to transfer “civil actions” to the Court of Common Pleas. During that secondary analysis of the definition of “civil action,” it mentioned that “the provisions of the act allow a period of ten days in which to appeal the compensation commissioner’s award. General Statutes § 31-301. If no appeal is taken during that period, tire appeal becomes final and is enforcible ‘in the same manner as a judgment of the superior court.’ General Statutes § 31-300.” Chieppo v. Robert E. McMichael, Inc., supra, 653. The Freeman court cited Chieppo for the proposition that because the case was transferred to the Court of Common Pleas outside of the then ten day appeal period and because the case was dismissed for lack of subject matter jurisdiction, timeliness implicates subject matter jurisdiction. Chieppo, however, ruled on the jurisdiction of the Superior Court to transfer a workers’ compensation case, not the jurisdiction of the Court of Common Pleas to hear the appeal.

       For a more comprehensive listing of the board’s decisions on the subject, see A. Sevarino, Connecticut Workers’ Compensation After Reforms (3d Ed. 2008 Sup.) § 10.82.6 n.3, pp. 1749-51.

       We note that the result we reach in the present case is different from that in Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 757. In Ambroise, the court found that the statute at issue did, implicate subject matter because it was neither vague nor ambiguous: “The language of [General Statutes] § 52-2781 (b) is clear and emphatic: ‘No such appeal shall be taken except within seven days . . . .’ That language means what it says.” Ambroise v. William Raveis Real Estate, Inc., supra, 765. That is not the case with the language of General Statutes § 31-301 (a).

       Note, however, that the statute was again amended in 2007; Public Acts 2007, No. 07-31, § 2; but, as it related to subsection (a), that amendment merely added a sentence to the end of the subsection, which does not bear on the present case.

       We note that canons of statutory construction often are contradictory. See In re William D., 284 Conn. 305, 312 n.6, 933 A.2d 1147 (2007). For example, remedial statutes, such as the workers’ compensation statute, are generally given a broad, liberal construction. See Vollemans v. Wallingford, 103 Conn. App. 188, 219, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008); 3 N. Singer & J. Singer, Statutes and Statutory Construction (7th Ed. 2008) § 60:1, pp. 250-64. On the other hand, statutes that “impose duties or burdens or establish rights or provide benefits not recognized by the common law have frequently been held subject to strict, or restrictive, interpretation.” 3 N. Singer & J. Singer, supra, § 61:1, p. 314; accord Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 766. It is well settled, however, that workers’ compensation legislation is liberally construed to effectuate its remedial purpose. See Evanuska v. Danbury, supra, 285 Conn. 358; 3B N. Singer, Statutes and Statutory Construction (6th Ed. 2003) § 75:3, pp. 25-26.