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Marshall v. UTC/Pratt & Whitney

CASE NO. 1317 CRD-1-91-10

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 27, 1993

JOSEPH MARSHALL

CLAIMANT-APPELLANT

v.

UTC/PRATT & WHITNEY

EMPLOYER

and

LIBERTY MUTUAL INSURANCE

INSURER

RESPONDENT-APPELLEE

and

INA/AETNA

INSURER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Brian W. Prucker, Esq., Asselin and Associates, One Courthouse Square, Willimantic, CT 06226.

The respondent Liberty Mutual was represented by Nancy Rosenbaum, Esq., Rosenbaum and Brennan, 20 Western Boulevard, Glastonbury, CT 06033. The respondents INA/Aetna was represented by James Pomeranz, Esq., Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412. The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101-0120.

This Petition for Review from the September 26, 1991 Ruling on Claimant’s Motion to Preclude of the Commissioner for the First District was heard September 25, 1992 before a Compensation Review Board panel consisting of Commissioners James J. Metro, Frank Verrilli and George Waldron.

OPINION

JAMES J. METRO, COMMISSIONER. The claimant has petitioned for review from the September 26, 1991 Ruling on Claimant’s Motion to Preclude. In that ruling the Commissioner for the First District denied Claimant’s Motion to Preclude and concluded that the respondent’s notice to the claimant which contested liability was sufficiently specific.

The claimant took the instant appeal and presents the following issue on appeal; (1) whether the commissioner erred in concluding that the respondent’s disclaimer was sufficiently specific under Sec. 31-297(b).1 However, the respondents in defense of this appeal, filed a Motion to Dismiss on the basis that the commissioner’s ruling was not a final judgment. In support of their contention the respondents cite Szudora v. Fairfield, 214 Conn. 552, 556 (1990) Shira v. National Business Systems, Inc., 25 Conn. App. 350, 353 (1991), and Timothy v. Upjohn, 3 Conn. App. 162 (1985) all of which considered whether a final judgment existed so as to permit appellate jurisdiction. However, the respondents argument ignores Sec. 31-301(a) which vests the Compensation Review Board with appellate authority. Sec. 31-301(a) provides in pertinent part, “At any time within ten days after entry of such 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 division....” (emphasis ours) Thus, it is readily apparent that Sec. 31-301(a) cloaks this body with the authority to hear and decide rulings on motions to preclude. We therefore dismiss the respondents’ Motion(s) to Dismiss.

As to the issue raised on the merits of the claimant’s appeal, that is, whether the commissioner erred in finding the language in the respondent’s disclaimer sufficiently specific under Sec. 31-297(b), we affirm the conclusion of the commissioner. Sec. 31-297(b) provides in pertinent part “[W]henever 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... stating that the right to compensation is contested... and the specific grounds on which the right to compensation is contested....”

We think our Appellate Court’s ruling in Tovish v. Gerber Electronics, 19 Conn. App. 273 (1989) cert. denied 212 Conn. 814 (1989) is dispositive of this issue. In the instant matter, the language in the disclaimer provided, “no proof of 8/27/87 alleged exposure arising in and out of the course of employment. No medical substantiation.” In Tovish, supra at 274, the Appellate Court held that a disclaimer which gave as the grounds of contest, “[I]njury (heart attack) did not arise out of or in the course and scope of employment,” was sufficient insofar as Sec. 31-297(b)’s requirements. Applying this standard to the language contained in the disclaimer at issue, we are compelled to uphold the conclusion reached by the trial commissioner.

We therefore affirm the commissioner’s September 26, 1991 ruling.

Commissioners Frank Verrilli and George Waldron concur.

1 Any other issue which may have been raised by the instant appeal is deemed abandoned as it was not briefed by the appellant. See e.g., Richardson v. H.B. Sanson Inc., 6 Conn. Workers’ Comp. Rev. Op. 107, 590 CRD-1-87 (1989) note 1. See also, Sachem’s Head Association v. Lufkin, 168 Conn. 365 (1975). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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