Compensation Review Board


      Workers' Compensation; Whether Failure to Appeal to Workers' Compensation Review Board Within Time Period Set Forth in General Statutes § 31-301 (a) Deprives Board of Subject Matter Jurisdiction; Whether Untimely Filing of Appeal may be Waived by Parties.  In 1986, Richard Stec, now deceased, and his spouse, filed a workers' compensation claim alleging that Stec contracted lung cancer as a result of exposure to asbestos during the course of his employment with defendant Raymark Industries, Inc.  As Raymark was in the course of bankruptcy proceedings, the second injury fund was cited in as a party to the claim.  The workers' compensation commissioner found that Stec had sustained a compensable injury, and after the bankruptcy court lifted the automatic stay, the commissioner issued a finding and award ordering Raymark to pay the benefits to which it had previously found the plaintiffs entitled.  Thereafter, the commissioner ordered the fund to pay the benefits, and the fund appealed to the compensation review board.  Defendant National Union Fire Insurance Co. filed a motion to dismiss the appeal on the ground that the fund failed to file its appeal within the time period set forth in General Statutes § 31-301 (a).  The fund argued, in response, that National Union waived the issue of timeliness by filing its motion to dismiss outside of the time period for filing such motions as set forth in Practice Book § 66-8.  The board granted the motion to dismiss, finding that it lacked subject matter jurisdiction because the appeal was untimely and that a motion to dismiss for lack of subject matter jurisdiction may be filed at any time.  On appeal, the Appellate Court (114 Conn. App. 141) reversed.  The Appellate Court held that § 31-301 (a) does not deprive the board of subject matter jurisdiction over a late appeal but, rather, provides the board with discretion to hear a late appeal where, as here, no timely motion to dismiss has been filed.  The court noted that the Supreme Court held in Murphy v. Elms Hotel, 104 Conn. 351 (1926), that the statutory time limitation on an appeal from the finding and award of a workers' compensation commissioner does not limit the subject matter jurisdiction of the appellate tribunal.  The court further noted that although § 31-301 has been amended several times since Murphy, the statute has not been altered to the extent that the effect of Murphy has been abrogated.  The court also noted that the language of the statute does not explicitly limit the board's authority or discretion to hear a late appeal and that the statute's legislative history shows an intent by the drafters not to limit the subject matter jurisdiction of the board to cases in which the appeal was timely.  In this appeal from the Appellate Court's decision, the Supreme Court will decide whether the Appellate Court properly determined that the failure to file an appeal from a decision of the workers' compensation commissioner within the time constraints set forth in § 31-301 (a) does not deprive the workers' compensation review board of jurisdiction.