Niles v. Autac, Inc.

CASE NO. 1261 CRD-3-91-7

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

MARCH 18, 1993

MARY LOU NILES

CLAIMANT-APPELLANT

v.

AUTAC, INC.

EMPLOYER

and

MARYLAND CASUALTY COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Roger Sullivan, Esq., P.O. Box 811, Branford, CT 06405-0811.

The respondents were represented by Louis N. George, Esq., formerly of Cohen and Channin, 241 Main Street, Hartford, CT 06106 and now of Hassett, George and Siegel, P.C., 567 Franklin Avenue, Hartford, CT 06114.

This Petition for Review from the July 19, 1991 Finding and Denial of Motion to Preclude of the Commissioner at Large acting for the Third District was heard May 29, 1992 before a Compensation Review Board consisting of the then Commission Chairman, John Arcudi and Commissioners Gerald Kolinsky and Michael S. Sherman.

OPINION

JOHN ARCUDI, COMMISSIONER. Claimant’s appeal contests the commissioner’s denial of preclusion of defenses. While working for the employer respondent on January 23, 1990 claimant alleges she suffered both a back and hiatal hernia injury. The employer accepted liability for injury to the back and ribs but not for the hiatal hernia.

A notice of claim was filed in the Third District office and with the employer August 16, 1990. The notice described the injury as “Hiatus hernia, traumatic costrochondritis to several ribs and lumbo sacral sprain.” The employer filed a notice of contest more than twenty-eight days later on September 24, 1990. Because the notice of contest was filed later than the twenty-eight day period set in Sec. 31-297(b), the claimant sought preclusion of defenses and an irrebuttable presumption of compensability.

Because the initial liability for the January 23, 1990 work incident was accepted by the respondents, the trial commissioner ruled that the dispute did not concern compensability but the extent of the disability caused by the January 23, 1990 injury. He therefore denied the motion to preclude. We agree.

Sec. 31-297(b) and Sec. 31-297(c) provide:

(b) Except as provided in subsection (c) of this section, whenever liability to pay compensation is contested by the employer, he shall file with the compensation commission, on or before the twentieth day after he has received a written notice of claimant, a notice in accord with a form prescribed by the commissioners 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, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability, provided the employer shall not be conclusively presumed to have accepted compensability when the written notice of claim has not been properly served in accordance with section 31-321 or when the written notice of claim fails to include a warning that the employer shall be precluded from contesting liability unless a notice contesting liability is filed within the time period set forth in this section.

(c) Whenever liability to pay compensation for an injury or death which occurs on or after October 1, 1989, is contested by the employer, the notice required by subsection (b) of this section shall be filed on or before the twenty-eighth day after receipt by such employer of the notice of claim.

Adzima v. UAC/Norden Div., 177 Conn. 107 (1977) held that Sec. 31-297(b) and the court’s prior decision in Menzes v. Fisher, 165 Conn. 338 (1973) does not preclude an employer from disputing the extent of a claimant’s disability.

Neither that case [Menzies, id.] nor the provisions of Sec. 31-297(b) were intended to apply to a situation where, as here, an employer accepts liability to pay a compensable injury, but contests only on the issue of the extent of the employee’s disability. (emphasis theirs)

Extending Menzies to allocate to the employer the burden of contesting the extent of the employee’s disability, within twenty days of the receipt of the employee’s claim for compensation, would impose upon the employer the burden of developing medical evidence as to the extent of the employee’s disability or injury, which otherwise would develop only after a hearing at which the employee would have the burden of proving both a compensable injury and the extent of the disability. In these circumstances, extending Menzies to apply to disability claims would place upon the employer the burden of investigating every subsequent claim of disability, as the medical consequences unfolded, and would force the employer to carry the burden of non-persuasion with respect to the existence and extent of those medical consequences. Such a result is neither compelled by General Statutes Sec. 31-297(b), nor by our decision in Menzies v. Fisher, supra. (emphasis theirs).

Adzima, supra at 112, 115. See also, Gardella v. The Torrington Co., 5 Conn. Workers’ Comp. Rev. Op. 33, 471 CRD-5-86 (1988).

Although claimant argues that respondents contest filed September 24, 1990 seems to contest all the compensability from the injury, in reality the only issue being contested was the hiatal hernia. Claimant’s testimony supports such a conclusion, as does the original Motion to Preclude of July 31, 1990 which stated, “The respondent has furnished temporary total compensation benefits and paid certain of the medical expenses which are clearly related to the back, but has neglected and refused to pay the hiatal hernia related expenses because of challenge to the relationship of the hernia injury to work causes.” Claimant’s Exhibit D. See also TR at 9-13.

We affirm the decision below and deny claimant’s appeal.

Commissioners Gerald Kolinsky and Michael S. Sherman concur.