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Meaney v. State of Connecticut/Department of Mental Retardation Region 1

CASE NO. 1284 CRD-7-91-8

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

MAY 17, 1993

WILLIAM MEANEY

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPARTMENT OF MENTAL RETARDATION REGION 1

EMPLOYER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented at the trial level by Joseph J. Fairchild, Esq., Sullivan, Reis, Sanchy and Logan, 9 Mason Street, Torrington, CT 06790-5380. The claimant appeared pro se on appeal.

The respondent was represented by Gerard Rucci, Esq., and Loida John Esq., Assistant Attorneys General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101-0120.

This Petition for Review from the August 19, 1991 Order Denying Claimant’s Motion to Preclude of the Commissioner for the Seventh District was heard August 7, 1992 before a Compensation Review Board panel consisting of the Commission Chairman, Jesse Frankl and Commissioners James J. Metro and Roberta D’Oyen.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 19, 1991 Order of the Commissioner for the Seventh District Denying Claimant’s Motion to Preclude. The pertinent facts are as follows.

The claimant was employed by the State of Connecticut in the Department of Mental Retardation, District #1. On December 22, 1989 the claimant submitted to his supervisor two (2) written Reports of Accident or Occupational Disease. These Reports of Accident or Occupational Disease purported that the claimant at various times between 1986 and 1989 was exposed to clients who were hepatitis carriers.1 (Claimant’s Exhibit A).

The trial commissioner found that neither of these two (2) Reports of Accident or Occupational Disease “even if otherwise sufficient to constitute written notice of claim under the provisions of Sec. 31-2942, C.G.S., were served in accordance with the requirements of Sec. 31-321, C.G.S.” Paragraph 7A. Additionally, the trial commissioner found that the claimant forwarded a Form 30C written notice of claim via certified mail return receipt requested which was addressed to “DMR Reg. 1, Nancy Butts, 395 W. Main St., Waterbury, CT 06702” and was received by the addressee on September 25, 1990.

The claimant’s Form 30C also described the claimant’s nature of injury as “Hepetitis” (sic) and provided the date of injury as “May 1990 diagnosed date, reported 11-89.” The trial commissioner then found that the claimant failed to strictly comply with Sec. 31-294’s requirements, inter alia, that a written notice of claim contain “the date of the first manifestation of a symptom of the occupational disease.” The trial commissioner, therefore, denied the Claimant’s Motion to Preclude.

The claimant took the instant appeal and the ultimate issue presented for review is whether the trial commissioner erred in failing to grant the Claimant’s Motion to Preclude. We affirm the ruling of the trial commissioner for various reasons.

Firstly we note that before the preclusive effects of Sec. 31-297(b)3 can be triggered, the claimant must satisfy the technical requirements set out in Sec. 31-294 as to a written notice of claim. Sec. e.g., Fuller v. Central Paving Co., 5 Conn. Workers’ Comp. Rev. Op. 92, 655 CRD-1-87 (1988). In Pereira v. State of Connecticut, 9 Conn. Workers’ Comp. Rev. Op. 9, 906 CRD-7-89-8 (1991) the claimant was employed by the State of Connecticut in its Department of Children and Youth Services. In her Form 30C the claimant merely identified the employer as “Dept. Children and Youth Services” and failed to add “State of Connecticut.” This tribunal affirmed the trial commissioner’s denial of the Motion to Preclude on the basis that the Form 30C did not strictly comply with Sec. 31-294 as it failed to properly identify the employer.

We think Pereira is directly on point and thus, on the basis of our opinion in Pereira the claimant’s Form 30C was insufficient notice as to trigger the respondent’s preclusion of defenses.

The claimant, however, also suggests that if the preclusion of defenses under Sec. 31-297(b) could not be on the basis of the clamant’s Form 30C, then the respondent should be precluded from asserting defenses on the basis of the claimant’s prior forwarding of two (2) Reports of Accident or Occupational Disease. Assuming arguendo, as the trial commissioner did, that these two reports satisfied the strict technical requirements of Sec. 31-294, the claimant’s failure to serve either of these documents so as to comply with Sec. 31-3214 mandates denial of the Motion to Preclude. See Timothy v. Upjohn, 2 Conn. Workers’ Comp. Rev. Op. 1, 150 CRD-3-82 (1983). Thus, while the Claimant’s Motion to Preclude must be denied, the claimant is free to pursue his claim on its merits. Id.

We, therefore, affirm the Commissioner of the Seventh District’s denial of the Claimant’s Motion to Preclude.

Commissioners James J. Metro and Roberta D’Oyen concur.

1 One Report of Accident or Occupational Disease attributed exposure at the Clapboard Ridge (sic) Group Home, Danbury, CT and described the nature of injury: “Staff was exposed to a client diagnosed as being a Hepatitis carrier. Staff worked there from 5/2/86 to 7/29/88 and 4/23/88 to 1/13/89 and at various times during 1989.”

The Second Report of Accident or Occupational Disease attributed exposure at B-Unit Waterbury Regional Center, Waterbury, CT and described the nature of injury as:

“Staff was exposed to a client (sic) diagnosed as being a hepatitis carrier. Staff worked there from 7/29/88 thru 11/10/88. Staff had been scratched by client numerous times. Staff had also been exposed (contact with) to human feces that was all over bedroom walls and client.” BACK TO TEXT

2 31-294 provides in pertinent part:

No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death, whichever is later. Such notice may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom, or the date of the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. BACK TO TEXT

3 Section 31-297(b) as amended by Public Act 89-31 provides as follows:

Section 31-297 of the general statutes is repealed and the following is substituted in lieu thereof:

(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 commissioner, on or before the twentieth day after he has received a written notice of claim, 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 an 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.

(c) Whenever liability to pay compensation for an injury or death occurs on or after the effective date of this act 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. BACK TO TEXT

4 Sec. 31-321 provides in pertinent part:

Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commissioner direct otherwise, any notice required under this chapter 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. Notices in behalf of a minor shall be given by or to his parent or guardian or, if there is no parent or guardian, then by or to such minor. BACK TO TEXT

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