Dechio v. Raymark Industries, Inc.

Opinion

The sole issue in this certified appeal is whether, in cases wherein the defendant, the second injury fund (fund), has participated in proceedings before the workers’ compensation commission (com *379 mission), the twenty day appeal period provided by General Statutes § 31-301 (a) 1 for the fund to challenge an adverse ruling of a workers’ compensation commissioner (commissioner) by appealing to the compensation review board (board), does not commence until the commissioner’s issuance of a supplemental order directing the fund to pay benefits pursuant to General Statutes § 31-355 (supplemental order), 2 rather than upon the issuance of the challenged order. The fund *380 appeals, upon our grant of its petition for certification, 3 from the judgment of the Appellate Court affirming the board’s decision dismissing, as untimely, its appeal from the supplemental order of the commissioner, ordering it to pay benefits pursuant to General Statutes § 31-306 4 to the plaintiff, Lovie Dechio, the surviving spouse of Peter Dechio (decedent), a longtime manufacturing employee of the named defendant, Raymark Industries, Inc. (Raymark). 5 Dechio v. Raymark Industries, Inc., 114 Conn. App. 58, 59-61, 968 A.2d 450 (2009). Guided primarily by our decision in Matey v. Estate of Dember, 256 Conn. 456, 774 A.2d 113 (2001), we conclude that the fund’s right to appeal, or otherwise preserve its appellate rights under Practice Book § 61-5, 6 accrued *381 when the commissioner issued a finding and award that established the compensability of the plaintiffs claim and determined that there was no other insurance coverage available, thereby rendering the fund’s liability for those benefits probable, rather than when the commissioner later rendered a supplemental order pursuant to § 31-355 directing the fund to pay those benefits in Raymark’s stead. Accordingly, we affirm the judgment of the Appellate Court.

The Appellate Court’s opinion aptly sets forth the following facts and procedural history. “On December 12,1981, [the decedent], a retired, longtime blue collar *382 worker for [Raymark], 7 died from complications resulting from lung cancer. [The decedent] was the plaintiff’s 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 [the decedent] died as a result of his exposure to asbestos arising out of and during the course of his employment with Raymark and that [the plaintiff] was entitled to benefits from [the decedent’s] date of death until [the plaintiffs] death or remarriage pursuant to ... § 31-306. 8 The commissioner ordered Raymark to pay those benefits and stated that a hearing would be held to determine [the decedent’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 9 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 *383 the proceedings because of its potential liability under § 31-355. Also cited into the proceedings as defendants were [Zurich], [The Hartford], General Reinsurance Group (General Reinsurance) and the Connecticut Insurance Guarantee Association (association). 10 Multiple formal hearings over the subsequent months formed the basis of the September 30, 2005 finding and award issued by [Amado J. Vargas, the workers’ compensation commissioner for the fifth district]. 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 *384 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 [the] 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 [the decedent’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. [See General Statutes § 31-310.]

“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. 11 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 *385 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 [and the carriers] 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 . . . .” 12 (Internal quotation marks omitted.) Dechio v. Raymark Industries, Inc., supra, 114 Conn. App. 62-65.

The fund appealed from the board’s dismissal order to the Appellate Court, which, in a split decision, affirmed the decision of the board. Id., 75. The Appellate Court majority rejected the fund’s argument 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.” Id., 68. Relying on our explication of final judgment principles in the workers’ compensation context set forth in Lev-arge v. General Dynamics Corp., 282 Conn. 386, 920 A.2d 996 (2007), the Appellate Court concluded that the supplemental order, from which the fund had appealed, was the result of a ministerial determination following the true appealable final judgment in this case, namely, *386 the September 29, 2006 order directing Raymark to pay all benefits due to the plaintiff. See Dechio v. Raymark Industries, Inc., supra, 114 Conn. App. 71-74. The Appellate Court concluded, therefore, that, given the undisputed facts surrounding the issuance of the commissioner’s decisions, as well as the fact that the fund had failed to preserve its right to appeal from the earlier rulings — and particularly the September 29, 2006 finding and award — by filing a notice of intent to appeal pursuant to Practice Book § 61-5; see id., 68; “it is clear that the petition for review was not filed within the statutory mandate of § 31-301.” Id., 74. Given that the plaintiffs motion to dismiss the appeal was timely filed, the Appellate Court concluded that the board properly had dismissed the fund’s appeal. 13 Id., 75. This certified appeal followed. See footnote 3 of this opinion.

On appeal, the fund claims that, for purposes of the twenty day appeal period set forth in § 31-301 (a), its appellate rights did not mature until the commissioner issued the supplemental order on October 25, 2006. The fund claims that we must read the appeals provision of § 31-301 (a) in conjunction with the scheme set forth in § 31-355 (b) regarding the provision of notice to the state treasurer, as custodian of the fund, followed by *387 a hearing to be held prior to the issuance of an order directing the fund to pay benefits in cases wherein the employer or carrier has failed to pay benefits. Alternatively, the fund relies on Judge Lavine’s opinion dissenting from the judgment of the Appellate Court, as well as Paranteau v. DeVita, 208 Conn. 515, 544 A.2d 634 (1988), and contends that the supplemental order constituted a substitute judgment that triggered a new appeal period, particularly as, under § 31-355 (b), the initial findings and awards, including those against Raymark, did not create liability on the part of the fund. 14 Along this line, the fund then contends that Matey v. Estate of Dember, supra, 256 Conn. 456, is not controlling because it did not involve the timeliness of an appeal, but, rather, the fund’s request for a trial de novo, and emphasizes that the fund’s failure to appeal or file a notice of its intent to appeal thus did not deprive the board of subject matter jurisdiction over its appeal. 15

In response, the plaintiff, joined by the carriers, contends that, given its participation throughout the lengthy proceedings and “aggressive” litigation of this case, the fund had standing to challenge the commissioner’s initial award when it was rendered and did not need to wait until the issuance of the supplemental order in order to appeal, or alternatively, it should have taken steps to preserve its appellate rights by filing a notice of intent to appeal pursuant to Practice Book *388 § 61-5. The plaintiff, relying on Matey v. Estate of Dember, supra, 256 Conn. 456, argues that separate proceedings were not required under § 31-355 (b) because the fund had the opportunity actively to litigate this case and contest its liability for the plaintiffs benefits throughout the proceedings before the commissioner; the plaintiff maintains that “the fund knew that the previous findings were inexorably building towards an ultimate award against it.” To this end, the carriers emphasize that the September 30, 2005 and September 29, 2006 findings and awards establishing compensability and self-insurance were appealable decisions, and that any actions taken thereafter with respect to obtaining relief from Raymark’s bankruptcy stay for purposes of the liability finding under § 31-355 (b) were “merely ministerial,” given the fact that “[i]t was well known during the pendency of the underlying action that [Raymark] was in bankruptcy and would not be able to pay any award.” We agree with the plaintiff and the carriers, and conclude that: (1) given the fund’s participation in these proceedings, the notice and hearing provisions of § 31-355 (b) are inapplicable; and (2) therefore, the twenty day appeal period of § 31-301 (a) began to run with the issuance of the September 30, 2005 order, which established a lack of other coverage and made clear the fund’s probable liability for payment of the plaintiffs benefits.

“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... It is well established that [although not dispositive, we accord great weight to the construe *389 tion given to the workers’ compensation statutes by the commissioner and [the] board. . . . [W]e do not afford deference to an agency’s interpretation of a statute when . . . the construction of a statute previously has not been subjected to judicial scrutiny or to a governmental agency’s time-tested interpretation . . . .” (Citation omitted; internal quotation marks omitted.) Jones v. Redding, 296 Conn. 352, 362-63, 995 A.2d 51 (2010).

The issue presented is a question of first impression for this court, and neither the parties nor the board assert that a time-tested interpretation exists as to the point at which the fund must appeal from the commissioner’s decision under § 31-301 (a). 16 “Accordingly, we do not defer to the board’s construction and exercise plenary review in accordance with our well established rules of statutory construction.” (Internal quotation marks omitted.) Thomas v. Dept. of Developmental Services, 297 Conn. 391, 399, 999 A.2d 682 (2010).

“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. ... In seeking to determine [the] meaning [of a statute], General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, *390 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, extra-textual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance 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 .... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citations omitted; internal quotation marks omitted.) Id.

We begin, then, with the text of § 31-301 (a), which governs appeals to the board, and 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 from which the award or the decision on a motion originated an appeal petition and five copies thereof. . . .” (Emphasis added.) “If 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.” General Statutes § 31-300. The plaintiff and the carriers argue that the appeal period under § 31-301 (a) began to run with the commissioner’s issuance of the award on September 30, 2005, or, alternatively, on September 29, 2006, the date of the finding and award directing Raymark to pay the plaintiff all benefits due.

The fund contends, however, that the relevant award or decision for purposes of starting the appeal period *391 set forth in § 31-301 (a) is, in all cases in which the fund is a party, the commissioner’s order pursuant to § 31-355 (b) requiring the fund to pay benefits, following a finding that the employer cannot or has not paid benefits. Section 31-355 (b) provides: “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 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. Whenever liability to pay compensation is contested by the Treasurer, the Treasurer shall file with the commissioner, on or before the twenty-eighth day after the Treasurer has received an order of payment from the commissioner, a notice in accordance with a form prescribed by the chairman of the Workers’ Compensation Commission stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested. A copy of the notice shall be sent to the employee. The commissioner shall hold a hearing on such contested liability at the request of the Treasurer or the employee in accordance with the provisions of this chapter. If the Treasurer fails to file the notice contesting liability within the time prescribed in this section, the Treasurer shall be conclusively presumed to have accepted the compensability of such alleged injury or death from the Second Injury Fund and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or contest the extent of the employee’s disability.” (Emphasis added.)

*392 At the outset, we observe that the parties’ proffered interpretations of §§ 31-301 (a) and 31-355 (b) are reasonable, particularly given the lack of a specific reference in § 31-355 (b) to appeals. The statutes are, therefore, ambiguous with respect to when the appeal period begins to run in cases wherein the fund has participated throughout the proceedings before the commission, rather than first entering the proceedings within twenty-eight days of the treasurer receiving an order to pay benefits. Accordingly, we may consult extratextual evidence in interpreting these statutes. See General Statutes § l-2z.

As the parties and the board acknowledge, this appeal is not our first opportunity to construe § 31-355 (b), as we previously examined this statute in Matey v. Estate ofDember, supra, 256 Conn. 456. In our view, our analysis in Matey belies the fund’s arguments that, under § 31-355 (b): (1) “its appeal period does not begin to run until twenty days following the issuance of an order directing it to pay an award that the employer or its insurer has not paid”; (2) “[i]f jurisdiction exists for the fund to contest liability, a fortiori, the fund could appeal the finding and award instead of requesting a de novo hearing”; and (3) it “is entitled to procedural due process which includes an appeal period that commences only when an order is specifically directed to it.” 17 In *393 Matey, we rejected the fund’s claim that, under § 31-355 (b), “regardless of whether it has participated in the prior litigation of the claim, the commissioner is required to hold a hearing upon notice of the fund’s intent to contest liability and a request for a hearing.” Matey v. Estate of Dember, supra, 490. In agreeing with the plaintiffs counterargument “that the statute is intended to provide the fund with an opportunity to contest liability for a claim when it has not had a prior opportunity to do so”; id., 490-91; we found the legislative history of § 31-355 (b), enacted as Public Acts 1991, No. 91-207 (P.A. 91-207), “to be particularly instructive.” Id., 491. We noted a debate on the bill on the Senate floor “between Senator Thomas F. Upson and Senator James H. Maloney: ‘Senator Upson: . . . My next problem or question would be does this [bill] mean that the claimant who has initially be[en] challenged by an insurance company, whether or not the accident was work related, could that be challenged again once the determination has been made that this is [s]econd [i]njury? That is challenged again by the [fund]? . . .

“ ‘Senator Maloney: The answer to the question is no. The bill comes into play when the [commissioner orders the payment of benefits from the fund because an employer or insurer failed or was unable to do so, it allows the [treasurer to contest the eligibility regardless of whether the employer has already done so. So it has to do with the issue of contesting eligibility and the intention is if the eligibility has already been contested below, I don’t see ... it is not the intention of the bill to allow it to be relitigated in effect. It is where it has not been contested, the [treasurer, under this legislation, would have the right to then make that contest.’ ” 18 (Emphasis added.) Id., 491, quoting 34 S. *394 Proc., Pt. 6, 1991 Sess., pp. 2003-2004; see also 34 S. Proc., supra, p. 2009, remarks of Senator Maloney (“[a]ll we are saying is if the matter has not been contested in a forum wherein the ultimate defendant didn’t have an opportunity to argue the case we should give the defendant the opportunity and that opportunity in this instance amounts to the [s]tate of Connecticut to protect the [s]tate from charges it should not have to pay”); Conn. Joint Standing Committee Hearings, Appropriations, Pt. 1, 1991 Sess., p. 66, remarks of Paul Vitarelli, special investigator for the fund (testifying in support of bill enacted as P.A. 91-207 because, “when the issue of compensability is not clear cut and must be decided as the statute is now written, the fund is precluded from any defense in these cases, resulting in the fund being ordered to pay claims without having the opportunity to defend the claim”).

Considering this legislative history, we determined that § 31-355 (b) was not “intended to require the commissioner to provide the fund with an opportunity to contest liability in every case where an order to make payment is entered against the fund, regardless of whether the fund participated in prior proceedings.” *395 Matey v. Estate of Dember, supra, 256 Conn. 493. Thus, we concluded that “the fund was not entitled to an opportunity to contest liability after the entry of the award in this case. The fund fully participated in the proceedings before the commissioner and the board for more than fourteen years. The fund was permitted to present evidence and arguments to both the commissioner and the board on all of its claims. We cannot conclude that, under these circumstances, § 31-355 (b) was intended to give the fund yet another opportunity to relitigate its claims after entry of the order to make payments. Accordingly, we reject the fund’s claim that the commissioner improperly denied it an opportunity to contest liability.” Id., 493-94.

Relying on Matey, we conclude that § 31-355 (b) is inapplicable in this case, because the fund has participated in these proceedings since 2002 and, thus, cannot contend that it lacked the opportunity to contest its liability for the plaintiffs claim, including the availability of alternate insurance coverage, an issue that it did litigate. 19 We disagree with the fund’s attempt to distinguish Matey on the ground that the issue therein was whether § 31-355 (b) “provides the fund with the right to retry a case after issuance of an order for the fund to pay benefits pursuant to § 31-355 where it was afforded a full opportunity to do so at the first trial.” 20 *396 Our discussion therein made clear that § 31-355 (b) simply is inapplicable to cases wherein the fund already has participated, as opposed to those cases wherein it receives an order to pay benefits without first having had the opportunity to contest its liability. 21

*397 Indeed, our conclusion that § 31-355 (b) is inapplicable for purposes of determining when the appeal period begins to run under § 31-301 (a) in cases wherein the fund already has been participating in the proceedings before the commission is consistent with an earlier decision of the board, Delucia v. Modena, 12 Conn. Workers’ Comp. Rev. Op. 212 (1994), which we consider instructive authority in this case. See, e.g., Jones v. Redding, supra, 296 Conn. 363; see also footnote 16 of this opinion. In Delucia v. Modena, supra, 216-17, the board concluded, inter alia, that both the fund and a beauty salon were precluded from challenging the commissioner’s determination that the salon was the claimant’s last employer for purposes of administering the claim and making initial payments pursuant to General Statutes § 31-299b. The board concluded that “neither . . . filed a timely appeal concerning the commissioner’s determination that [the salon] was the claimant’s last employer prior to the filing of her claim and therefore the initially liable respondent under [§] 31-299b. That determination was explicitly made in the July 21, 1992 [f]inding and [a]ward. [The salon] and the . . . [f]und did not file their appeals until after the commissioner rendered his November 23,1992 [f]inding and [a]ward [determining the extent of the claimant’s disability and awarding benefits]. While the appeals *398 were timely in relation to that later [finding and [a]ward, the issue of the initially liable respondent under [§] 31-299b had already been determined and orders to that effect were entered months before. Because no timely appeal had been taken on the [§] 31-299b issue, the commissioner’s determination had become final, no longer subject to review.” Id. In our view, Deluda supports our conclusion that, in the absence of the filing of an appeal to the board or other attempt to preserve appellate rights taken within twenty days of an adverse decision, the commissioner’s various determinations became final under § 31-300, even as the proceedings before the commission continued until the issuance of the supplemental order.

Relying on Paranteau v. DeVita, supra, 208 Conn. 515, the fund contends, however, that the supplemental order constituted a substitute judgment that triggered a new appeal period with respect either to that order or the underlying findings and awards upon which it was predicated. We disagree. In Paranteau, an action to recover damages for an alleged violation of the Connecticut Unfair Trade Practices Act; General Statutes § 42-110a et seq.; the defendant had filed his appeal “within twenty days after the order determining the amount of attorney’s fees to be awarded the plaintiffs, but more than twenty days after the trial court’s judgment on the merits.” Paranteau v. DeVita, supra, 519. After adopting a “bright line rule” that a “judgment on the merits is final for purposes of appeal even though the recoverability or amount of attorney’s fees for the litigation remains to be determined”; id., 522-23; this court concluded that only the portion of the appeal challenging the fee award was timely. Id., 524. In our view, Paranteau does not support the fund’s position in this appeal because, to the extent that it is applicable in the workers’ compensation context, the commissioner’s supplemental order in this case, like the attorney’s *399 fee award in Paranteau, did not disturb the commissioner’s earlier findings on the merits of compensability and lack of other insurance coverage, rendering a challenge to the earlier decisions similarly untimely. 22

Finally, we disagree with the fund’s reliance on Hum-mel v. Marten Transport, Ltd., 282 Conn. 477, 923 A.2d 657 (2007), for the proposition that, because further proceedings were still required before the commissioner, the fund lacked an appealable final judgment until the issuance of the supplemental order and, therefore, need not have preserved its rights by filing notices of intent to appeal from the earlier adverse decisions pursuant to Practice Book § 61-5. See footnote 6 of this opinion. Hummel, which temporarily reaffirmed our jurisprudence imposing a final judgment requirement with respect to appeals from the board to the Appellate Court pursuant to General Statutes § 31-30 lb, notwithstanding the lack of a final judgment requirement in *400 the text of that statute; see Hummel v. Marten Transport, Ltd., supra, 501-502; does not stand for the proposition that appeals from the decisions of a commissioner to the board are subject to the same final judgment requirement imposed by General Statutes § 52-263 23 with respect to appeals from the Superior Court. Moreover, the plain language of § 31-301 (a) lacks any language imposing a final judgment requirement, and we do not read in such a restriction on the right to appeal, particularly given the fact that the legislature has seen fit to address the final judgment concept in subsection (g) of § 31-301, pertaining to a claimant’s potential repayment of benefits received during a pending appeal, 24 without importing that language into subsection (a). See, e.g., Saunders v. Firtel, 293 Conn. 515, 527, 978 A.2d 487 (2009) (“when a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed” [internal quotation marks omit *401 ted]); cf. Public Acts 2009, No. 09-178, § 1 (superseding final judgment requirement set forth in Hummel v. Marten Transport, Ltd., supra, 477, and amending § 31-30lb to permit appeals from decisions of board to Appellate Court “whether or not the decision is a final decision within the meaning of [General Statutes §] 4-183 or a final judgment within the meaning of [§] 52-263”). Indeed, the board’s own procedural case law belies the existence of any such final judgment requirement. 25 See Austin v. State, No. 5014, CRB-8-5-11 (November 8, 2006) (“we have held in the past that the denial of a [mjotion to [preclude may be appealed to this board under § 31-301 [a], even though it is not a final judgment for purposes of appeal to a higher court”); Cutler v. State, No. 3506, CRB-07-96-12 (April 28,1998) (denying motion to dismiss appeal for lack of “appealable final judgment” because § 31-301 [a] permits “appeal to be filed to the [board] after an award, a ‘decision by the commissioner upon a motion,’ or after a § 31-299b order”). 26 Accordingly, that the commissioner’s deci *402 sions prior to the supplemental order of October 25, 2006, were not “final judgment[s]” as that term has been developed under § 52-263 does not rescue the fund’s otherwise untimely subsequent appeal to the board. 27

Having determined in the present case that § 31-355 (b), and the supplemental order rendered pursuant thereto, are inapplicable for purposes of calculating the appeal period of § 31-301 (a), we next must determine which award or decision started that period and required the fund either to appeal or preserve its appellate rights by filing a notice of intent to appeal pursuant to Practice Book § 61-5. 28 See footnote 6 of this opinion. Given our determination that there is no final judgment rule with respect to appeals from the commissioner to the board, we look, then, to determine which decision or award rendered the fund an aggrieved party by establishing the “possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Citations omitted; internal *403 quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 370, 880 A.2d 138 (2005); see also Delucia v. Modena, supra, 12 Conn. Workers’ Comp. Rev. Op. 216-17 (appeal from determination of initially liable respondent under § 31-299b was untimely when delayed until issuance of award determining extent of claimant’s disability and awarding benefits). Having reviewed the record, we conclude that the fund was required to appeal, or preserve its appellate rights, following the commissioner’s issuance of the September 30, 2005 finding and award, because that decision rendered the likelihood of its responsibility for the payment of the plaintiffs benefits far more than a speculative possibility, and the issue that the fund sought to challenge on appeal, namely, whether the other carriers were hable, had been determined therein.

Specifically, the September 30, 2005 award rendered the fund an aggrieved party for appellate purposes because the commissioner: (1) upheld the propriety of the initial finding of compensability rendered on June 24,1988; (2) rejected the fund’s claims that the carriers had insured Raymark’s manufacturing or blue collar employees and were responsible to pay those benefits pursuant to the June 24,1988 award; (3) concluded that the commission lacked jurisdiction to determine any liability on the part of the association or General Reinsurance, Raymark’s excess insurance carrier; and (4) determined a weekly compensation rate of $224.93 pursuant to § 31-310. Although the commissioner noted that he could not issue an award against the fund at that time because an order first had to issue against Raymark, which was then under bankruptcy protection, the commissioner made clear that he would “entertain any motions or requests for orders against [Raymark] prior to any order” against the fund pursuant to § 31-355 once the plaintiff obtained relief from the stay or *404 Raymark exited bankruptcy. 29 Significantly, the reasons for appeal accompanying the fund’s petition to the board, after issuance of the supplemental order, related only to decisions made in connection with the September 30, 2005 order. 30 Thus, the fund should not have waited until after the issuance of the supplemental order to file its appeal to the board, or otherwise preserve its right to challenge, the decision issued more than one year earlier, which became final by virtue of that failure. See General Statutes § 31-300.

Finally, the rule of practice applicable to the deferral of appeals, namely, Practice Book § 61-5; see footnotes 6 and 28 of this opinion; supports our conclusion that the fund was required to preserve its right to appeal from the commissioner’s September 30, 2005 decision. Section 61-5 specifically contemplates decisions like that rendered on September 30, 2005, which had concluded that none of the carriers were liable for the benefits herein, as that rule requires the filing of a notice of intent to appeal when the “deferred appeal is to be taken from a judgment that not only disposes of an entire complaint, counterclaim or cross complaint but *405 also disposes of all the causes of action brought by or against a party or parties so that that party or parties are not parties to any remaining complaint, counterclaim or cross complaint . . . Practice Book § 61-5 (a) (1). Indeed, if the fund were to file a notice of intent to appeal, the carriers would have the opportunity to object to any such deferral, and, therefore, accelerate receipt of a final determination with respect to their role in the case. See Practice Book § 61-5.

As a consequence of the fund’s failure to timely file an appeal pursuant to § 31-301 (a), or otherwise preserve its appellate rights under Practice Book § 61-5, the board lacked subject matter jurisdiction over the fund’s appeal. See Stec v. Raymark Industries, Inc., 299 Conn. 346, 10 A.3d 1 (2010). The Appellate Court, therefore, properly affirmed the board’s order of dismissal.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.