author: PALMER, J. BERDON, J.,

text:
    HENRY KUDLACZ v. LINDBERG HEAT TREATING COMPANY ET AL.
    (SC 15994)
    Callahan, C. J., and Borden, Berdon, Katz and Palmer, Js.
    Argued April 20
    officially released September 14, 1999

      Jacek I. Smigelski, for the appellant (plaintiff).

      Richard S. Bartlett, for the appellees (named defendant et al.).
   Opinion

PALMER, J.

Under General Statutes § 31-301 (a), a party aggrieved by a decision of a workers’ compensation commissioner (commissioner) has ten days within which to appeal that decision to the compensation review board (board). This certified appeal requires us to decide whether that ten day appeal period is tolled when the aggrieved party fails to file his appeal within the ten day period because, through no fault of his own, he does not receive notice of the commissioner’s decision prior to the expiration of that ten day period. The Appellate Court concluded that the appeal period is not tolled in such circumstances. We disagree and, consequently, reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following undisputed facts. The plaintiff, Henry Kudlacz, “claimed to be injured on May 29, 1992, in the course of his employment as a delivery driver, and on June 4, 1992, in the course of his employment as a package sorter handler. In considering the evidence and testimony presented, the . . . commissioner . . . concluded that the plaintiff was not credible and that he was not injured at either [employment] as he alleged and, to the extent [that] he may have had a repetitive trauma injury to his back at [the second employment], there was no resulting permanent disability and no compensable period of temporary disability since the [plaintiff] continued to work after the injury .... The commissioner vacated a voluntary agreement issued by the first employer and its insurance carrier based on mutual mistake of fact, and dismissed all claims for compensation and medical treatment presented by the plaintiff.” (Internal quotation marks omitted.) Kudlacz v. Lindberg Heat Treating Co., 49 Conn. App. 1, 2-3, 712 A.2d 973 (1998).

The commissioner sent notice of his decision via certified mail to all parties, including the plaintiff, on August 8, 1996. The plaintiff filed his petition for review of the commissioner’s decision with the board on August 21,1996. The named defendant and its insurance carrier, also a defendant in this case, moved to dismiss the petition for lack of subject matter jurisdiction. Specifically, they claimed that the plaintiff had failed to file his petition within the ten day appeal period prescribed by § 31-301 (a) because, under controlling precedent, “the ten day period begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner’s decision.” (Emphasis added.) Conaci v. Hartford Hospital, 36 Conn. App. 298, 303, 650 A.2d 613 (1994). In response, the plaintiff acknowledged that he had not filed the petition within ten days of August 8, 1996, the date on which the commissioner had sent notice to him. The plaintiff claimed, however, that, through no fault of his own, he did not receive such notice until after the expiration of the ten day period. Under such circumstances, the plaintiff asserts, the limitation period was tolled, and the petition was timely because it was filed within ten days of the date that he received notice of the commissioner’s decision. The board rejected the plaintiffs claim, stating that, under binding Appellate Court precedent, “the date of receipt of notice is not the issue .... [Rather,] it is the date meaningful notice of the [commissioner’s] decision is sent, by [the commissioner].” (Emphasis in original.) Kudlacz v. Lindberg Heat Treating Co., 3407 CRB 8-96-8 (June 6,1997). The board concluded, therefore, that it had “no choice but to dismiss the [plaintiffs] appeal for failure to timely file under § 31-301 (a).” Id.

The plaintiff appealed from the decision of the board to the Appellate Court, claiming that the board improperly determined that his petition was untimely under § 31-301 (a). The Appellate Court, with one judge dissenting, affirmed the board’s decision dismissing the plaintiffs petition for lack of subject matter jurisdiction. Kudlacz v. Lindberg Heat Treating Co., supra, 49 Conn. App. 6. In rejecting the plaintiffs claim, the Appellate Court reaffirmed its prior precedent, holding that the ten day appeal period of § 31-301 (a) commences on the date meaningful notice of the commissioner’s decision is sent to the party wanting to appeal. Id., 3-5. The court declined to make an exception for cases in which the aggrieved party can prove receipt of such notice after ten days from the date notice is sent. Id., 5-6. The court stated that to conclude that the ten day “appeal period [set forth in § 31-301 (a)] commences when notice of the appealable decision is received would create undue delay and difficulties in proving receipt by the party wanting to appeal. Conaci v. Hartford Hospital, supra, 36 Conn. App. 303. In determining when the appeal period commences, we rely, rather, on the records of the commission as to when notice is sent. Id., 304. As we recently stated, [t]his court must construe [§ 31-301 (a)] as it finds it without reference to whether we feel that the law might be improved .... [We] cannot rewrite a statute to accomplish a particular result. That is the function of the legislature. . . . Vega v. Waltsco, Inc., [46 Conn. App. 298, 304, 699 A.2d 247 (1997)].” (Internal quotation marks omitted.) Kudlacz v. Lindberg Heat Treating Co., supra, 5-6.

We granted the plaintiff’s petition for certification limited to the following issue: “Did the Appellate Court properly affirm the decision of the compensation review board that it lacked subject matter jurisdiction over the plaintiffs appeal because it was untimely, pursuant to General Statutes § 31-301 (a)?” Kudlacz v. Lindberg Heat Treating Co., 247 Conn. 909, 719 A.2d 903 (1998). On appeal to this court, the plaintiff seeks reversal of the Appellate Court judgment on the ground that, under the circumstances of this case, we must construe the ten day appeal period of § 31-301 (a) as having been tolled until the plaintiff received notice of the commissioner’s decision. The plaintiff contends that it would be fundamentally unfair to deprive him of his statutory right to appeal the commissioner’s decision because, through no fault of his own, he did not receive notice of the commissioner’s decision until the ten day period for filing his petition already had expired. The plaintiff maintains that, in such circumstances, the legislature reasonably could not have intended the result reached by the Appellate Court. We agree with the statutory construction advocated by the plaintiff.

“[T]he process of statutory interpretation involves a reasoned search for the intention of the legislature. ... As with any issue of statutory interpretation, our initial guide is the language of the statute itself. . . . Furthermore, we interpret statutory language in light of the puxpose and policy behind the enactment.” (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). Finally, in seeking to ascertain the intent of the legislature regarding the proper construction of § 31-301 (a), we are guided by “the golden rule of statutory interpretation . . . that the legislature is presumed to have intended a reasonable, just and constitutional result.” (Internal quotation marks omitted.) Hudson House Condominium Assn., Inc. v. Brooks, 223 Conn. 610, 615, 611 A.2d 862 (1992).

Construed literally, § 31-301 (a) mandates that a party who wishes to appeal from an adverse ruling of the commissioner do so within ten days after the commissioner renders his or her decision. We previously have eschewed a literal interpretation of the ten day limitation period of § 31-301 (a), however, concluding that the legislature “[undoubtedly . . . intended this provision to mean ten days after notice to the party of the entry of such finding-, otherwise, in the event of the failure of the commissioner to notify the party of his finding and award within the ten-day period, the taking of the appeal would be fruitless.” (Emphasis added.) Murphy v. Elms Hotel, 104 Conn. 351, 352, 133 A. 106 (1926) (interpreting General Statutes [1918 Rev.] § 5366, as amended by Public Acts 1919, c. 142, § 14, predecessor to § 31-301). “Fundamental rights to procedural due process mandate such a construction.” Trinkley v. Ella Grasso Regional Center, 220 Conn. 739, 743, 601 A.2d 515 (1992).

We reach a similar conclusion with respect to the issue of statutory interpretation presented by this appeal. In light of the obvious unfairness inherent in depriving an aggrieved party of the right to appeal the commissioner’s decision solely because of a failure of notice beyond that party’s control, we will not lightly presume that the legislature intended such a result. See id.; Kron v. Thelen, 178 Conn. 189, 193, 197, 423 A.2d 857 (1979); Murphy v. Elms Hotel, supra, 104 Conn. 352.

Although the short appeal period contained in § 31-301 (a) reflects the “intention of the framers of the [Workers’ Compensation Act (act)] ... to establish a speedy, effective and inexpensive method for determining claims for compensation”; Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 653, 363 A.2d 1085 (1975); there is nothing in the act to suggest that the quick resolution of compensation claims trumps all other considerations, including the right of an aggrieved party to obtain meaningful review of a commissioner’s decision. On the contrary, the availability of such review is an integral part of the statutory scheme because, under the act, both the employer and employee surrender important rights otherwise available to them at common law. See, e.g., Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 446, 705 A.2d 1012 (1997) (“The purpose of the [act] . . . is to provide compensation for injuries arising out of and in the course of employment, regardless of fault. . . . 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.” [Internal quotation marks omitted.]). To bar an appeal by a party who, through no fault of his own, has not received notice of the commissioner’s adverse decision, would be inconsistent with the right to appellate review expressly granted to an aggrieved party under § 31-301 (a). It is one thing to conclude that an aggrieved party has forfeited the right to such review by failing to take appropriate steps to perfect that right; it is another matter entirely, however, to deprive a party of the right to appeal solely because of a failure of notice for which that party bears no responsibility.

The defendants contend that the construction of § 31-301 (a) urged by the plaintiff will further tax our already burdened workers’ compensation system. Allowing an aggrieved party the opportunity to rebut the presumption of timely notice, the defendants maintain, is bound to spawn time-consuming litigation concerning when the aggrieved party actually received notice of the commissioner’s decision, and whether that party bears any responsibility for the late notice. We are not persuaded by the defendants’ argument. It will be the rare case in which notice sent to the parties by the commissioner via certified mail fails to arrive at an aggrieved party’s address within ten days of the date that it was sent. In light of the significant interests at stake, our workers’ compensation system must be prepared to bear whatever slight burden may result from the need to resolve the unusual case in which a claim of lack of notice is raised.

We recognize that the statutory interpretation we adopt today may give rise to some inequities. For example, as the Appellate Court observed in Conaci v. Hartford Hospital, supra, 36 Conn. App. 304, a party receiving notice of a decision nine days after it has been sent by the commissioner has only one day within which to appeal, whereas a party who receives notice on the eleventh day has ten days within which to do so. Nevertheless, we agree with the observation of Judge Spear that “[tjhere is no logic to the notion that the plaintiff, who received no notice during the ten day period, should lose his right to appeal because of the possibility that a case may arise in the future in which notice is received so late in the ten day period that the time to appeal is severely compressed. Such a case can be addressed if and when it arises.” Kudlacz v. Lindberg Heat Treating Co., supra, 49 Conn. App. 12 (Spear, J., dissenting).

Accordingly, we conclude that the ten day appeal period of § 31-301 (a) is tolled when the aggrieved party establishes that, through no fault of his own, he did not receive notice of the commissioner’s decision within ten days of the date that it was sent. On remand, therefore, the plaintiff shall be afforded the opportunity to show that he did not receive notice of the commissioner’s decision until August 20, 1996, as he has asserted; see footnote 7 of this opinion; and, furthermore, that he failed to receive such notice through no fault of his own.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the board for further proceedings according to law.

In this opinion CALLAHAN, C. J., and BORDEN and KATZ, Js., concurred.

BERDON, J.,

concurring. I join the result — and only the result — of the majority opinion. For a discussion of the analytic framework that I would employ in matters such as the present case, see my dissenting opinion in Schreck v. Stamford, 250 Conn. 592, 602, 737 A.2d 916 (1999).

       General Statutes § 31-301 (a) provides in relevant part: “At any time within ten days after entry of an award by the commissioner . . . either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. . . .”

       When we refer throughout this opinion to a party receiving notice of a commissioner’s decision, including the plaintiff, we are referring to the receipt of notice by that party’s counsel, to the extent that the party is represented by counsel. In Schreck v. Stamford, 250 Conn. 592, 600-601, 737 A.2d 916 (1999), also decided today, we held that when aplaintiff wishing to appeal an adverse decision of a commissioner is represented by counsel in that appeal, the ten day appeal period prescribed by § 31-301 (a) begins to run on the date that the commissioner sends notice to the party’s counsel, rather than to the party. As in Schreck, the plaintiff in this case was represented by counsel.

       “The plaintiff claims that the first injury was to his head and neck, and the second was to his back. The plaintiff sought [workers’ compensation] benefits from his employers, the defendants Lindberg Heat Treating Company and United Parcel Service, Inc., and their respective insurance carriers, the defendants Crawford and Company and liberty Mutual Insurance Company.” Kudlacz v. Lindberg Heat Treating Co., 49 Conn. App. 1, 2 n.3, 712 A.2d 973 (1998).

       General Statutes § 31-321, which prescribes the manner of serving notice for purposes of this state's Workers’ Compensation Act, provides in relevant part: “Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under [the Workers’ Compensation Act] to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business. . . .” See also Kudlacz v. Lindberg Heat Treating Co., 3407 CRB 8-96-8 (June 6, 1997) (“[i]n order to facilitate a determination of when notice of a decision is sent ... all commissioners [must] send out notices of their decisions via certified mail”).

       Notice of the commissioner’s decision was sent to the plaintiffs attorney, whose mailing address at that time was a post office box.

       The Appellate Court consistently has reaffirmed this interpretation of §31-301 (a). See, e.g., Vega v. Waltsco, Inc., 46 Conn. App. 298, 301, 699 A.2d 247 (1997); Cyr v. Domino’s Pizza, 45 Conn. App. 199, 203-204 n.5, 695 A.2d 29 (1997); Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720, 667 A.2d 76 (1995). As we have concluded today in Kulig v. Crown Supermarket, 250 Conn. 603, 610, 738 A.2d 613 (1999), we agree with this construction of § 31-301 (a).

       The plaintiffs attorney represented that he received a facsimile copy of the decision on August 20, 1996, and an original copy on August 22, 1996.

       The plaintiff does not challenge the board’s determination that it lacks subject matter jurisdiction over a petition for review that has not been filed within the period prescribed by § 31-301 (a). See, e.g., Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 648, 363 A.2d 1085 (1975); Freeman v. Hull Dye & Print, Inc,., 39 Conn. App. 717, 720, 667 A.2d 76 (1995).

       In dissent, Judge Spear agreed with the plaintiff that principles of fundamental fairness precluded the construction of § 31-301 (a) adopted by the majority. Kudlacz v. Lindberg Heat Treating Co., supra, 49 Conn. App. 6 (Spear, J., dissenting). Judge Spear addressed the rationale underlying the majority’s decision as follows: “Finally, the majority correctly states that we must construe § 31-301 as we find it without regard to whether the law might be improved. The construction that I advocate does not change § 31-301 in any way. It simply requires that the applicable time period be construed in a manner that is consistent with constitutional due process. It is a fundamental rule that, if its language permits, a statute will be construed so as to render it constitutionally valid. Grega v. Warden, 178 Conn. 207, 210, 423 A.2d 873 (1979). [The Connecticut] Supreme Court, in reliance on Gi-ega, later stated that a court is justified in holding that a statute was intended to be subject to constitutional requirements, and that those requirements are to be considered as embodied in the statute, if its terms do not exclude such requirements. . . . Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985). I see nothing in § 31-301 that would preclude us from construing it so that the plaintiff, who acted promptly after receiving notice, is not barred from pursuing his appeal. I conclude that the appeal was timely filed.” (Internal quotation marks omitted.) Kudlacz v. Lindberg Heat Treating Co., supra, 12 (Spear, J., dissenting).

       The plaintiff relies primarily on Kron v. Thelen, 178 Conn. 189, 423 A.2d 857 (1979), in which we stated that “[t]he right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue. Until the prospective appellant has either actual or constructive noüce that a decision has been reached, the right of appeal is meaningless." (Internal quotation marks omitted.) Id., 193.

       We note that neither party has presented us with any legislative history relative to the issue we decide today, and we are aware of none.

       Of course, if an aggrieved party, either by action or inaction, thwarts reasonable efforts at notification, then that party reasonably cannot claim any unfairness if those efforts prove to be unavailing. Moreover, as this court has noted, a party’s “own inaction in response to actual notice cannot be made the basis of a claim that he was not afforded due process.” Rogers v. Commission of Human Rights & Opportunities, 195 Conn. 543, 548, 489 A.2d 368 (1985).

       See footnote 4 of this opinion.

       Of course, the party also must establish that the appeal was filed within ten days from the date that he actually received notice of the commissioner’s decision. It does not appear, however, that that fact is disputed in this case.

       The plaintiff claims that the board made a factual finding that he did not receive notice within the ten day appeal period and, consequently, that no further proceedings on that issue are necessary. We disagree with the plaintiff’s characterization of the board’s decision. Although the board did state that “[o]nly the [plaintiff] failed to receive notice within the ten-day appeal period”; Kudlacz v. Lindberg Heat Treating Co., 3407 CRB 8-96-8 (June 6, 1997); that statement was made in connection with the board’s discussion of the argument that the plaintiffs attorney had made in support of the plaintiff’s claim that his petition for review should not be dismissed. There is nothing in the record to indicate that the board actually made a finding that the plaintiff had not received notice within the ten day period.


source: Caselaw Access Project

author:
PALMER, J.
      BERDON, J.,

license: Public Domain

text:
    ROBERT SCHRECK v. CITY OF STAMFORD
    (SC 16061)
    Callahan, C. J., and Borden, Berdon, Katz and Palmer, Js.
    Argued April 20
    officially released September 14, 1999

      Richard S. Bartlett, for the appellants (defendants).

      Joseph Lucian Gerardi, for the appellee (plaintiff).
   Opinion

PALMER, J.

In this certified appeal, we must decide whether the Appellate Court properly concluded that, under General Statutes § 31-301 (a), the ten day period for a party to appeal to the compensation review board (board) from an adverse decision of a workers’ compensation commissioner (commissioner) begins to run on the date that the commissioner sends notice of the decision to the party, rather than to the party’s counsel. We conclude that the ten day limitation period commences on the date that notice is sent to the party’s counsel. Accordingly, we reverse the judgment of the Appellate Court.

The following relevant facts are set forth in the opinion of the Appellate Court. “The . . . claim [of the plaintiff, Robert Schreck,] for workers’ compensation [arose] out of a work-related motor vehicle accident .... [The plaintiffs claim] was voluntarily accepted by the defendant [the city of Stamford]. The defendant . . . paid for the plaintiffs medical and indemnity benefits. Subsequently, hearings were held before a . . . commissioner to determine whether the defendant was entitled to a credit for amounts the plaintiff received from settlements with third parties.

“The commissioner issued his decision in favor of the defendant on March 29, 1996, and sent notice to counsel for both parties on the same day. [According to the plaintiff, his counsel did not receive notice of the commissioner’s decision until April 11, 1996.] Notice was never sent directly to the plaintiff. . . . [0]n April 11, 1996, [thirteen days after the commissioner had sent notice to counsel for the parties] the plaintiff filed a petition for review of the commissioner’s decision. On May 1, 1996, the defendant filed a motion to dismiss the appeal on jurisdictional grounds, claiming that the appeal was filed more than ten days after the entry of the commissioner’s decision.

“The board heard oral argument on both the motion to dismiss and the merits of the appeal and then dismissed the appeal as untimely.” Schreck v. Stamford, 51 Conn. App. 92, 93-94, 719 A.2d 1208 (1998). On appeal to the Appellate Court, the plaintiff claimed, inter alia, that the ten day appeal period of § 31-301 (a) begins to run on the date that notice is sent to the party, rather than to the party’s counsel. See id., 93. According to the plaintiff, because notice never was sent to him directly, the ten day appeal period never began to run and, consequently, his appeal was timely. See id., 93, 94. The Appellate Court agreed with the plaintiff and reversed the decision of the board. Id., 95-96. In concluding that the ten day appeal period of § 31-301 (a) does not begin to run until notice is sent to the party, rather than to the party’s counsel, the Appellate Court relied primarily on its decision in Vega v. Waltsco, Inc., 46 Conn. 298, 302, 699 A.2d 247 (1997). See Schreck v. Stamford, supra, 94 — 95. In Vega, “[n]otice of the commissioner’s findings and award was sent to the plaintiff rather than to the plaintiff’s counsel. [The Appellate Court] held that the notice to the plaintiff was adequate to commence the appeal period. Furthermore, [the] court stated that the appropriate party to receive such notice was in fact the plaintiff and not the plaintiffs attorney.” (Emphasis added.) Id., 95.

We granted the defendant’s petition for certification limited to the following issue: “Did the Appellate Court properly conclude that, under General Statutes § 31-301 (a), the time for a party to appeal to the compensation review board from a decision of a workers’ compensation commission does not begin until the commissioner sends notice of the decision to the party, rather than to the party’s counsel?” Schreck v. Stamford, 247 Conn. 955, 723 A.2d 810 (1999). Contrary to the determination of the Appellate Court, we conclude that, in cases in which a party is represented by counsel, the ten day appeal period commences on the date that notice is sent to a party’s counsel.

The defendant acknowledges that the relevant statutory provisions, namely, General Statutes §§ 31-300 and 31-301 (a), speak in terms of parties, and not attorneys. Section 31-300 provides that “the commissioner shall send to each party a written copy of his findings and award”; (emphasis added); and § 31-301 (a) provides that “either party may appeal”; (emphasis added); from an adverse decision of the commissioner. The defendant contends, however, that a literal construction of these statutory provisions to exclude a plaintiffs attorney is inconsistent with the overarching purpose of the Workers’ Compensation Act (act), namely, “to establish a speedy, effective and inexpensive method for determining claims for compensation.” Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 653, 363 A.2d 1085 (1975); accord Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 588, 738 A.2d 135 (1999). According to the defendant, the interpretation of §§ 31-300 and 31-301 (a) urged by the plaintiff would lead to confusion and place an unnecessary and unintended burden upon parties to workers’ compensation cases who are represented by counsel. The plaintiff counters that failure to construe the pertinent statutory provisions literally would frustrate the intent of the legislature as expressed in the clear language of the act.

“The process of statutory interpretation involves a reasoned search for the intention 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 this case .... In seeking to determine that meaning, 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.” (Citation omitted; internal quotation marks omitted.) Luce v. United Technologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998). “In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended.” Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d 857 (1979); accord Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). Finally, because the question presented by this appeal involves an issue of statutory construction, our review is plenary. E.g., Coley v. Camden Associates, Inc., 243 Conn. 311, 318, 702 A.2d 1180 (1997).

Although §§ 31-300 and 31-301 (a) speak in terms of parties, that fact alone is not dispositive. Indeed, we have cautioned against reliance solely on the language of the act, even when that language appears to be clear, “since words seldom have precise or unvarying meanings.” Dos Santos v. F.D. Rich Construction Co., 233 Conn. 14, 20, 658 A.2d 83 (1995); see also Duni v. United Technologies Corp., 239 Conn. 19, 25, 682 A.2d 99 (1996). Moreover, to avoid unfair results determined to be inconsistent with the intent of the legislature, we eschewed a literal interpretation of the language of § 31-301 (a) in Kudlacz v. Lindberg Heat Treating Co., supra, 250 Conn. 590-91, in which we construed the ten day appeal period prescribed by § 31-301 (a) to include a tolling provision for the benefit of a party who wishes to appeal if that party can establish that, through no fault of his own, he did not receive notice within ten days of the date that notice was sent. See also Murphy v. Elms Hotel, 104 Conn. 351, 352, 133 A. 106 (1926) (although predecessor statute of § 31-301 (a) provided that ten day appeal period began to run from date of “entry” of commissioner’s finding and award, legislature must have intended for appeal period to commence on date notice is given to party wishing to appeal). Because the consequences of the strict construction of § 31-301 (a) advanced by the plaintiff would be contrary to the overriding purpose of the act — to promote the efficient and speedy resolution of claims involving employment-related injuries — we reject such a construction and conclude that, in cases in which a party is represented by counsel, the ten day appeal period commences when notice of the commissioner’s decision is sent to the party’s counsel, rather than to the party.

As the defendant asserts, the commissioner’s delivery of notice to a party’s chosen legal representative promotes efficiency in the workers’ compensation system by relieving that party of the responsibility of forwarding such notice to his or her attorney. Indeed, we may presume that a party who has retained counsel in a workers’ compensation case has done so precisely because that party does not wish to assume personal responsibility for complying with the various procedural requirements of the act. Moreover, the appeal period prescribed by § 31-301 (a) is very short; consequently, under the statutory construction advocated by the plaintiff, a party who receives notice of the commissioner’s decision must promptly forward such notice to his or her counsel to avoid forfeiting the right to appeal. It is extremely unlikely that the legislature intended to impose such a burden on a party who has retained counsel for the specific purpose of representing the party on such matters.

In support of his claim that the legislature intended the ten day appeal period of § 31-301 (a) to begin running only upon notice to the party, the plaintiff points to two other provisions of the act; General Statutes §§ 31-298 and 31-299; that contain references both to parties and attorneys. Section 31-298 provides in relevant part: “Both parties may appear at any hearing, either in person or by attorney or other accredited representative, and no formal pleadings shall be required, beyond any informal notices that the commission approves. In all cases and hearings under the provisions of [the act], the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of [the act], . . .” This provision, which describes the relatively informal hearing procedure applicable to workers’ compensation cases, distinguishes between parties and attorneys solely to make it clear that an attorney may appear in lieu of his or her client. Because this provision addresses the question of who may appear at the hearing, it was necessary for the legislature, in that context, to distinguish between parties and attorneys. There existed no similar need for the legislature to have distinguished between parties and attorneys in §§ 31-300 and 31-301 (a).

Section 31-299, upon which the plaintiff also relies, provides in relevant part: “At any hearing before a compensation commissioner no written statement, and no oral statement taken by means of tape recorder or any mechanical, electrical or electronic device, concerning the facts out of which the claim arose or affecting such claim, given by either party to the other, or to his agent, attorney or insurer, shall be admissible in evidence unless a copy of the written statement or a transcript of the oral statement, as the case may be, is retained by the party giving such statement . . . .” This section also provides no support for the plaintiffs claim that the use of the term “party” in § 31-301 (a) reflects an intent by the legislature purposefully to exclude counsel from the purview of § 31-301 (a). Rather, § 31-299 merely identifies those persons or entities to whom a written or oral statement may have been given, and provides that any such statement is not admissible unless a copy or transcript of the written or oral statement, respectively, is retained by the party giving the statement. Again, § 31-299 distinguishes between parties and counsel only because that distinction is necessary in light of the purpose of that provision.

As we have indicated, a speedy and effective workers’ compensation system is fostered by the recognition that parties frequently retain counsel to represent them. Although it undoubtedly is true that “many more attorneys are now involved in the [workers’ compensation] system than had been envisioned by the founders of the system”; Vega v. Waltsco, Inc., supra, 46 Conn. App. 304; the fact is that the founders recognized that parties to workers’ compensation proceedings have the right to retain counsel, and the free exercise of that right never has been discouraged. Indeed, as one scholar observed when the act became law, “[t]he attitude of the Commissioners towards the legal profession may be expressed ... as follows: They do not believe that sound public policy should require in a simple case the absorption of a considerable amount of the compensation in legal fees. . . . They recognize, however, the right of the parties to have counsel in any case, and in cases involving difficult questions of law and fact, and considerable amounts, they believe that injured parties and employers . . . are entitled to have all the light that can be secured, and that not only may the interests of the employer require expert assistance, but that it may be as unwise for an injured employee to try to handle his own claim for compensation as to attempt to heal his physical ills without a doctor.” (Emphasis added.) G. Beers, “The Connecticut Compensation Act,” 23 Yale L.J. 580, 587 (1914).

We are persuaded, therefore, that, in cases in which a party is represented by counsel, the ten 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, rather than to the party. Accordingly, we reject the conclusion of the Appellate Court that the ten day notice period never began to run in this case because notice was not sent directly to the plaintiff.

Notwithstanding our conclusion, the plaintiff nevertheless may be entitled to reinstatement of his appeal. The plaintiff consistently has maintained, both before the board and on appeal to the Appellate Court and this court, that his counsel did not receive notice of the commissioner’s decision until more than ten days after the commissioner had mailed notice to counsel. In light of our holding today in Kudlacz v. Lindberg Heat Treating Co., supra, 250 Conn. 590-91; see footnote 5 of this opinion; the plaintiff is entitled to establish that his counsel did not receive timely notice of the decision, and that counsel failed to receive such notice through no fault of his own. If the plaintiff is able to make the requisite showing, then the plaintiffs appeal to the board must be reinstated.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the board for further proceedings according to law.

In this opinion CALLAHAN, C. J., and BORDEN and KATZ, Js., concurred.

BERDON, J.,

concurring in part and dissenting in part. During my quarter of a century on the bench, I have witnessed a great many injustices that resulted from the application of hypertechnical rules to untimely appeals. Such rules prevent controversies from being decided on the merits, they add substantial costs to the litigation process, they increase the cost of insurance premiums for legal malpractice coverage and — most importantly — they deprive litigants of justice. In my view, such rules have no place in our society as we approach the new millennium. Unfortunately, my colleagues in the majority disagree.

Under our supervisory powers, I would adopt the following universal rule: An appeal is timely if it is filed within a reasonable time after the statutory deadline, unless the party seeking dismissal can demonstrate either (1) that the text of the relevant statute explicitly and unambiguously provides that strict compliance with the deadline is a jurisdictional prerequisite or (2) that permitting the appeal to go forward will result in undue prejudice. In the absence of one of these two showings, it is unjust to prohibit a litigant from having his or her day in court simply because his or her attorney failed to file certain documents at a particular time. Although I am not surprised that my colleagues on this court disagree with me, it is my hope that the legislature will enact a statute adopting the equitable rule that I have proposed.

Applying this rule to the facts of the controversy before us, it is apparent that the trial court improperly dismissed the present case. Nevertheless, I join that aspect of the majority opinion that affords parties an opportunity to establish that counsel did not receive timely notice of relevant decisions. In my view, the contrary result would violate both the constitution and fundamental principles of equity.

Accordingly, I concur in part and dissent in part.

       General Statutes § 31-301 (a) provides: “At any time within ten 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 from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties.”

       General Statutes § 31-300 provides in relevant 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. . . .”
      General Statutes § 31-321 provides in relevant part: “Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under [the Workers’ Compensation Act] to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business. . . .”

       A discussion of the details concerning the defendant’s claim for credit is not necessary to our disposition of this appeal.

       The plaintiffs counsel claimed that the postal service had attempted delivery of the notice to his office on March 30, 1996, a Saturday, but that his office was closed on that day, and that he did not receive notice until April 11, 1996.

       In Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 590-91, 738 A.2d 135 (1999), also decided today, we held that the ten day appeal period prescribed by § 31-301 (a) is tolled when aparty wishing to appeal establishes that, through no fault of his own, he did not receive notice of the commissioner’s decision within ten days of the date that it was sent As we discuss later in this opinion, the plaintiff is entitled to establish that the appeal period was tolled in this case.

       On appeal to the Appellate Court, the plaintiff also claimed, for the first time, that the notice the commissioner sent to his counsel via certified mail, return receipt requested, did not comply with General Statutes § 31-321; see footnote 2 of this opinion; because that type of mailing is not expressly authorized under that provision. Because we did not certify this issue, the parties have not briefed it and, consequently, we do not address it. Although we ordinarily would remand the case to the Appellate Court for consideration of that alternative ground for affirmance, we do not do so in this case for two reasons. First, the issue potentially will be moot if the plaintiff establishes that he is entitled to reinstatement of his appeal under our holding in Kudlacz v. Lindberg Heat Treating Co., supra, 250 Conn. 590-91. Second, the plaintiff did not raise this claim before the board and, accordingly, the Appellate Court would not be bound to consider it. In light of these considerations, we deem it appropriate to have the case remanded to the board, which may, in its discretion, entertain the plaintiffs claim should the plaintiff choose to pursue it.

       See, e.g., Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 738 A.2d 135 (1999).

       I would apply this rule to all statutory periods of limitation before all courts, all administrative commissions, and all administrative review boards.

       If a party attempts to demonstrate that permitting the appeal to go forward will result in undue prejudice, I would require a hearing before the trial court or the administrative body in order to evaluate the merits of this argument.


author: PALMER, J.

text:
    TERESA KULIG v. CROWN SUPERMARKET ET AL.
    (SC 15897)
    Callahan, C. J., and Borden, Katz and Palmer, Js.

    Argued September 24, 1998
    officially released September 14, 1999

      Jacekl. Smigelski, with whom was Timothy F. Mills, for the appellant (plaintiff).

      James J. Dunham, Jr., for the appellees (defendants).

       Justice Berdon originally was assigned to this case, but subsequently recused himself. The parties have consented to a determination of this appeal by the remaining four members of the panel. See General Statutes § 51-207.

   Opinion

PALMER, J.

The principal issue raised by this appeal is whether the ten day limitation period prescribed by General Statutes § 31-301 (a) for appealing an adverse decision of a workers’ compensation commissioner (commissioner) to the compensation review board (board) begins to run from the date the commissioner sends notice of his or her decision to the party wishing to appeal, or from the date notice is received by that party. We conclude that the ten day period commences on the date that notice is sent to the party by the commissioner.

The relevant facts and procedural history may be summarized as follows. On March 7, 1994, the plaintiff, Teresa Kulig, was burned when she spilled a large pot of boiling soup on her legs in the course of her employment with the named defendant, Crown Supermarket, in West Hartford. The plaintiff sought workers’ compensation benefits under General Statutes § 31-308 (c) *for the scarring that she suffered as a result of those bums.

After a hearing, the commissioner concluded that the plaintiff was not eligible for benefits under § 31-308 (c) and, on March 19, 1996, sent notice of his findings and decision to counsel for the parties by certified mail pursuant to General Statutes § 31-321. The defendants’ counsel received notice on March 20, 1996. The plaintiff’s attorney, however, claims not to have received notice of the commissioner’s decision until April 24, 1996, thirty-five days after it had been mailed to him. The plaintiff filed an appeal from the commissioner’s decision on May 2, 1996, eight days after receiving notice but forty-three days after the commissioner had sent that notice by certified mail.

The board dismissed the plaintiffs appeal on the ground that it had not been filed within the ten day limitation period of § 31-301 (a). In dismissing the appeal, the board stated that it was bound by decisions of our Appellate Court in which that court held that the ten day period commences on the day that the commissioner sends notice of his or her decision to the party wishing to appeal. See, e.g., Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720, 667 A.2d 76 (1995); Conaci v. Hartford Hospital, 36 Conn. App. 298, 303, 650 A.2d 613 (1994). The board, therefore, concluded that it lacked subject matter jurisdiction over the plaintiffs appeal. Kulig v. Crown Supermarket, 3335 CRB 6-96-5 (November 25, 1997). The plaintiff appealed from the decision of the board to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1, and General Statutes § 51-199 (c).

The plaintiff claims that the ten day appeal period prescribed by § 31-301 (a) commences on the date that a party wishing to appeal receives notice of the commissioner’s decision, rather than the date on which the commissioner sends notice to that party. In support of this contention, the plaintiff argues that it is fundamentally unfair to deprive a party of the right to appeal solely because of a failure of notice for which the party bears no responsibility. According to the plaintiff, the legislature reasonably could not have intended such a constitutionally suspect result. Although we agree with the plaintiff that the legislature did not intend such a result, we need not, and do not, construe § 31-301 (a) in the manner that the plaintiff advocates. Rather, we conclude, consistent with our decision in Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 738 A.2d 135 (1999), and in accordance with established Appellate Court precedent, that the ten day appeal period begins to run from the date on which notice is sent by the commissioner, subject to the tolling of the ten day period when a party wishing to appeal establishes that, through no fault of his own, he did not receive notice within ten days of the date that notice was sent.

“[T]he process of statutory interpretation involves a reasoned search for the intention of the legislature. ... As with any issue of statutory interpretation, our initial guide is the language of the statute itself. . . . Furthermore, we interpret statutory language in light of the purpose and policy behind the enactment. . . . Finally, in seeking to ascertain the intent of the legislature regarding the proper construction of § 31-301 (a), we are guided by the golden rule of statutory interpretation . . . that the legislature is presumed to have intended a reasonable, just and constitutional result.

“Construed literally, § 31-301 (a) mandates that a party who wishes to appeal from an adverse ruling of the commissioner do so within ten days after the commissioner renders his or her decision. See General Statutes § 31-301 (a). We previously have eschewed a literal interpretation of the ten day appeal period of § 31-301 (a), however, concluding that the legislature [undoubtedly . . . intended this provision to mean ten days after notice to the party of the entry of such finding; otherwise, in the event of the failure of the commissioner to notify the party of his finding and award within the ten-day period, the taking of the appeal would be fruitless. . . . Murphy v. Elms Hotel, 104 Conn. 351, 352, 133 A. 106 (1926) (interpreting General Statutes [1918 Rev.] § 5366, as amended by Public Acts 1919, c. 142, § 14, predecessor to § 31-301). Fundamental rights to procedural due process mandate such a construction. Trinkley v. Ella Grasso Regional Center, 220 Conn. 739, 743, 601 A.2d 515 (1992).” (Citations omitted; emphasis in original; internal quotation marks omitted.) Kudlacz v. Lindberg Heat Treating Co., supra, 250 Conn. 587-88.

The plaintiff claims that the same constitutional considerations compel the conclusion that the ten day appeal period of § 31-301 (a) does not begin to run until notice of the commissioner’s decision is received by the party wishing to appeal. In Kudlacz v. Lindberg Heat Treating Co., supra, 250 Conn. 581, which we also decide today, we recognized the “obvious unfairness inherent in depriving an aggrieved party of the right to appeal the commissioner’s decision solely because of a failure of notice beyond that party’s control . . . .” Id., 588: In light of this unfairness, we concluded in Kudlacz “that the ten day appeal period of § 31-301 (a) is tolled when the aggrieved party establishes that, through no fault of his own, he did not receive notice of the commissioner’s decision within ten days of the date that it was sent.” Id., 590-91. In so concluding, we operated on the assumption that the ten day appeal period of § 31-301 (a) commences on the date that notice of the commissioner’s decision is sent to the aggrieved party. Our holding in Kudlacz, therefore, addresses, and eliminates, the due process concerns that the plaintiff in this case raises in support of her argument regarding the proper construction of § 31-301 (a). The plaintiff makes no other argument as to why we should overrule established Appellate Court precedent holding that the ten day appeal period begins to run from the date notice is sent, and we decline to do so.

As we have indicated, the Appellate Court consistently has held “that the ten day appeal period [of § 31-301 (a)] begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner’s decision.” (Emphasis added.) Conaci v. Hartford Hospital, supra, 36 Conn. App. 303; accord Vega v. Waltsco, Inc., 46 Conn. App. 298, 301, 699 A.2d 247 (1997); Cyr v. Domino’s Pizza, 45 Conn. App. 199, 203-204 n.5, 695 A.2d 29 (1997); Freeman v. Hull Dye & Print, Inc., supra, 39 Conn. App. 720. In explaining this conclusion, the Appellate Court in Conaci observed that this court’s decision in Trinkley v. Ella Grasso Regional Center, supra, 220 Conn. 743, “implied that the operative date from which the limitation period for appeals to the . . . board should run is the date that notice is given to the party who might want to appeal.” Conaci v. Hartford Hospital, supra, 303. In Conaci, the Appellate Court sought to “follow the direction [this court had taken] in Trinkley [and] . . . decline [d] to adopt the . . . position that the appeal period commences when notice of the appealable decision is received [because such] a holding would create undue delay and difficulties in proving receipt by the party wanting to appeal.” Id. We agree with this reasoning. Accordingly, we conclude that the ten day appeal period prescribed by § 31-301 (a) begins to run on the date that notice is sent by the commissioner, rather than on the date that notice is received.

In accordance with our holding in Kudlacz, however, the plaintiff is entitled to establish that: (1) through no fault of her own, she failed to receive notice of the commissioner’s decision within ten days of the date that she was sent such notice by the commissioner; and (2) the plaintiffs petition for review of the commissioner’s decision was filed within ten days of the date that she received notice of that decision. See Kudlacz v. Lindberg Heat Treating Co., supra, 250 Conn. 590-91. If, on remand, the plaintiff can make such a showing, then her appeal to the board must be reinstated.

The decision of the board is reversed and the case is remanded to the board for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes § 31-301 (a) provides in relevant part: “At any time within ten days after entry of an award by the commissioner . . . either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. . . .”

       When we refer throughout this opinion to a party receiving notice, including the plaintiff, we are referring to the receipt of notice by that party’s counsel, to the extent that the party is represented by counsel. In Schreck v. Stamford, 250 Conn. 592, 600-601, 737 A.2d 916 (1999), also decided today, we held that when a plaintiff wishing to appeal an adverse decision of a commissioner is represented by counsel in that appeal, the ten day limitation period prescribed by § 31-301 (a) begins to run on the date that the commissioner sends notice to the party’s counsel, rather than to the party. As in Schreck, the plaintiff in this case was represented by counsel.

       Crown Supermarket's insurance carrier also is a defendant in this case.

       General Statutes § 31-308 (c) provides in relevant part: “[T]he commissioner . . . may award compensation . . . for any permanent significant disfigurement of, or pennanent significant scar on, (A) the face, head or neck, or (B) on any other area of the body which handicaps the employee in obtaining or continuing to work. . . . [N]o compensation shall be awarded for any scar or disfigurement which is not located on (A) the face, head or neck, or (B) any other area of the body which handicaps the employee in obtaining or continuing to work. . . .”

         The commissioner concluded that the plaintiff did “not qualify for scarring benefits under [§ 31-308 (c)] because her scarring [was] not on the face, head or neck and . . . she [was] able to continue with her regular occupation at Crown Supermarket [at that time].”

       General Statutes § 31-321 provides in relevant part: “Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under [the Workers’ Compensation Act] to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business. . . .” See also Kudlacz v. Lindberg Heat Treating Co., 3407 CRB 8-96-8 (June 6, 1997) (“[i]n order to facilitate a determination of when notice of a decision is sent ... all commissioners [must] send out notices of their decisions via certified mail”).

       The board stated: “We do not have the authority to overrule . . . [the] decisions of our Appellate Court that specifically address this matter, despite the claimant’s vehement protests that the . . . standard [adopted by the Appellate Court] ignores the reality that notice is not always received within ten days after it is mailed. The simple fact is that this board does not have jurisdiction to consider the merits of a claim once we determine that an appeal is untimely, as it was here. . . . Legally, we can do nothing but dismiss this appeal.” (Citation omitted.) Kulig v. Crown Supermarket, 3335 CRB 6-96-5 (November 25,1997). The plaintiff does not challenge the conclusion of the board that it lacks subject matter jurisdiction over an appeal by a party who has failed to comply with the ten day limitation period of § 31-301 (a). See, e.g., Chieppo v. RobertE. McMichael, Inc., 169 Conn. 646, 648, 363 A.2d 1085 (1975); Freeman v. Hull Dye & Print, Inc., supra, 39 Conn. App. 720.

       The plaintiff in Kudlacz, although represented by the same attorney as the plaintiff in this ease, did not claim that the ten day appeal period prescribed by § 31-301 (a) should be construed to run from the date that notice is received by the party wishing to appeal. See generally Kudlacz v. Lindberg Heat Treating Co., supra, 250 Conn. 586. Rather, the plaintiff in Kudlacz argued, and we agreed, that the ten day period is tolled when, through no fault of the party wishing to appeal, that party did not receive notice of the commissioner’s decision within ten days of the date that the commissioner sent notice to the party. Id., 590-91.

       In addition to these difficulties, the construction urged by the plaintiff frequently would result in one party to a case having an appeal deadline different from that of another party to the same case.

       Of course, this conclusion is subject to our holding in Kudlacz regarding the tolling of that appeal period in the circumstances described previously. See footnote 9 of this opinion.

       Because the plaintiff was represented by counsel, she actually must show that counsel, through no fault of his own, failed to receive the commissioner’s notice within the ten day appeal period. See Schreck v. Stamford, 250 Conn. 592, 600-601, 737 A.2d 916 (1999); footnote 3 of this opinion.

       The plaintiff also claims that she never received proper notice of the commissioner’s decision because, under § 31-301 (a), the commissioner was required to send notice to her, as the party, rather than to her attorney. This claim, however, is foreclosed by our decision in Schreck v. Stamford, 250 Conn. 592, 600-601, 737 A.2d 916 (1999); see footnote 3 of this opinion; which we also decide today.