State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Walter & Walter v. State of Connecticut/Services for the Blind

CASE NO. 1694 CRB-2-93-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 2, 1995

CLAUDIA WALTER

PRESUMPTIVE DEPENDENT WIDOW

and

DANA WALTER

PRESUMPTIVE DEPENDENT DAUGHTER of NORBERT WALTER (Deceased)

CLAIMANTS-APPELLANTS

CROSS-APPELLEES

v.

STATE OF CONNECTICUT/SERVICES FOR THE BLIND

EMPLOYER

SELF INSURED

and

ALEXSIS

SELF-INSURED ADMINISTRATOR

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant was represented by Brian W. Prucker, Esq., Fitzgerald & Prucker, Buckland Center, 1127 Tolland Turnpike, Manchester, CT 06040.

The respondent was represented by Philip M. Schulz, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the April 6, 1993 decision on the respondents’ Motion to Open Record and Submit Additional Evidence and the May 28, 1993 Decision Re: Motion to Preclude of the Commissioner acting for the Second District were heard November 18, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimants and the respondents have petitioned for review from separate rulings by the Commissioner for the Second District on a Motion to Preclude and a Motion to Open the Record and Submit Additional Evidence. The claimants argue on appeal that the Motion to Open the Record and Submit Additional Evidence should not have been granted by the commissioner. The respondents argue that the commissioner improperly granted the claimant’s Motion to Preclude. We affirm the commissioner’s ruling with respect to the claimants’ appeal, and reverse the commissioner’s decision on the Motion to Preclude.

The claimants, Claudia and Dana Walter, are respectively the widow and the daughter of the decedent Norbert Walter, who was an employee of the State of Connecticut at the time of his death on November 13, 1989. The claimants each filed a Notice of Claim for Compensation dated January 15, 1990 with the state and the Second District Commission offices. The notices informed the state of each claimant’s individual claim, one by the dependent widow and one by the dependent child. See § 31-306 C.G.S.

On January 26, 1990, the state mailed duplicate Notices of Intention to Contest Liability to Pay Compensation, using the Form 43 prescribed by the Workers’ Compensation Commission. These notices were sent certified to the Second District office within the 28-day period prescribed by § 31-297(c) C.G.S. (now § 31-294c(b).) However, the Form 43s named only the deceased employee, failing to name either claimant. The claimants subsequently filed a Motion to Preclude the respondent from contesting their claims.

A formal hearing was scheduled for December 16, 1992, at which the state did not appear. The state then filed a Motion to Reopen and Submit Additional Evidence on March 19, 1993, in which it explained that its counsel was not present at that hearing due to lack of timely notice. The commissioner granted the motion, and the state was allowed to request that administrative notice be taken of the timely Form 43s sent by the state. The claimants appealed the granting of the state’s motion.

The commissioner then issued a decision on the Motion to Preclude, finding that the claimants were both supported by the decedent, who at the time of his death was an employee of the State of Connecticut. He also found that the Form 43s named the wrong parties as claimants and were not sent to the proper parties. Therefore, the commissioner granted the claimants’ Motion to Preclude. The respondents appeal from that decision.

We first address the claimants’ appeal from the granting of the state’s Motion to Open the Record and Submit Additional Evidence. In that motion, the state alleged that the Attorney General’s office did not receive notice of the December 16, 1992 hearing until the day of the hearing, when no file was available for counsel to review, and that the respondent insurer Alexsis, Inc. was attempting to obtain the file for the Attorney General’s office. The commissioner granted the motion and allowed the state to submit its Form 43s and a brief. The claimants now argue that the respondent was aware of the case long before the formal hearing, but took no steps to obtain the file. They also argue that the Attorney General’s office had a duty to file an appearance, which it did not do, and that the issuance of notice to the insurer over one month before the hearing allowed the defense plenty of time to communicate. They claim prejudice by the opening of the record, and error in the granting of the motion to reopen.

“Generally, the action of a compensation commissioner upon a motion to open his award for the purpose of hearing further evidence is like that of a court upon a motion for a new trial.” Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 273 (1948). “[M]ere negligence, without intentional withholding of evidence, particularly where there is no more than technical prejudice to the adverse party, should not necessarily debar [a litigant] of his rights, and despite these circumstances a commissioner in the exercise of his discretion might be justified in opening an award.” Id., 274. A commissioner is thus entitled to considerable discretion in deciding whether to grant a motion to reopen. Brusca v. Color Tech, Inc., 3 Conn. Workers’ Comp. Rev. Op. 81, 82, 50 CRD-7-81 (Nov. 6, 1986). We will not disturb his or her decision absent an abuse of that discretion. Besade v. Interstate Security Services, 212 Conn. 441, 452-53 (1989).

In this case, the commissioner’s decision to open the record was supported by the fact that the Attorney General’s office was not properly notified of the formal hearing. Moreover, the commissioner had not yet issued an award based on the claimants’ Motion to Preclude, so the commissioner was not disturbing a final judgment when he allowed the state to file its brief and request administrative notice be taken of its Form 43s. Although the claimants allege prejudice, there is no evidence that they were unfairly burdened in any way by the commissioner’s decision, as they were well aware of the allegedly defective Form 43s when their Motion to Preclude was filed. We also note for the benefit of the claimants that Administrative Regulation § 31-297(b)-1 gives the commissioner power to waive the filing requirements of the party opposing a Motion to Preclude upon good cause shown, and Administrative Regulation § 31-301-9 only applies to motions addressed to this Board. We thus affirm the commissioner’s decision on the state’s Motion to Open the Record and Submit Additional Evidence.

We now reach the respondents’ appeal from the commissioner’s decision to grant the claimants’ Motion to Preclude. At the time of the decedent’s death, § 31-297(b) provided in relevant part: “Whenever liability to pay compensation is contested by the employer, he shall file with the 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 and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee.” (Emphasis added.) Failure to comply with this section results in the conclusive presumption that the employer has accepted the compensability of the employee’s injury or death.

In attempting to comply with this statute, the state completed two Form 43s entitled “Notice to Compensation Commissioner and Employee of Intention to Contest Liability to Pay Compensation” that had been issued by the Workers’ Compensation Commission. The completed forms indicated that the state intended to dispute the causal relation between the claimant’s employment and the illnesses leading to his death. However, the Form 43s specifically instruct the person completing the forms to enter the name and address of the employee rather than that of the claimant. The person completing the forms filled them out accordingly, and mailed the Form 43s to the Norwich District Office in a timely manner and to the deceased employee at his last address, which was also the claimants’ address.

Unfortunately for the respondent, § 31-297(b) requires the name of the claimant to be on the notice to contest rather than the name of the employee. The commissioner found that the Form 43s named the wrong parties as claimants, also finding that the notices had not been sent to the claimants as the proper parties in interest. The commissioner thus granted the claimants’ Motion to Preclude.

The purpose of the notice requirement in § 31-297(b) is twofold: to inspire employers to promptly investigate claims, and to ensure that claimants will be timely apprised of the specific reasons for the denial of their claims. Menzies v. Fisher, 165 Conn. 338, 343 (1973). Notice need not be technically perfect, so long as it reveals the specific substantive grounds on which compensability is contested. Pereira v. State, 228 Conn. 535, 541 (1994); Menzies, supra, 345. Although this Board has always recognized that these principles operate behind § 31-297(b), the remedial purpose underlying the notice requirements of the Workers’ Compensation Act has been reemphasized in recent Supreme and Appellate Court decisions such as Pereira, supra, and Dubois v. General Dynamics Corp., 222 Conn. 62 (1992). We believe that this requires us to reexamine our policy regarding the sufficiency of notice of intent to contest compensability.

When previously confronted with a situation almost identical to this one, this Board decided that a notice of disclaimer addressed and sent to a deceased employee rather than his widow was insufficient under § 31-297(b). “[I]t is the widow who is the claimant here, not the deceased or his estate. The widow is asserting § 31-306 rights in her own status as a dependent.” Butkus v. Town of Bethlehem, 4 Conn. Workers’ Comp. Rev. Op. 153, 154, 421 CRD-5-85 (Feb. 23, 1988). Those quoted statements still remain true under the facts of the instant case, and we stand by them.

As discussed in our recent decision in Bell v. Dow Corning STI, Inc., 1777 CRB-4-93-7 (decided Jan. 31, 1995), however, our Supreme Court has indicated dissatisfaction with the rule of strict compliance previously used by this Board in evaluating the sufficiency of claimant’s “Form 30” notices of claim for the purpose of supporting Motions to Preclude. Pereira, supra, 542-43 n.8; see, e.g., Fuller v. Central Paving Company, 5 Conn. Workers’ Comp. Rev. Op. 92, 665 CRD-1-87 (April 6, 1988). The remedial nature of the Workers’ Compensation Act demands a broad construction of the statute to accomplish its humanitarian purpose; Dubois, supra, 67; and requires this Board to overlook minor defects in notice as long as a defendant is not prejudiced in its ability to investigate claims. Pereira, supra, 543 n.8. We also take note of our Appellate Court’s recent decision in which it declined to read into § 31-297(b) a requirement that the employer send notice contesting liability to the employee (as opposed to this commission) within twenty days after receiving written notice of claim. Vachon v. General Dynamics Corp., 29 Conn. App. 654 (1992). Although clearly supported by the statutory language, this decision also typifies the courts’ movement away from an uncompromising view of the notice requirements in § 31-294c and § 31-297(b).

In light of these developments in the law, we decide here that the most appropriate philosophical route to follow in this case is the one we pursued in Bell, supra. Thus, we must determine whether the state’s notice to contest liability substantially complied with § 31-297(b) and gave the claimants sufficient notice of the state’s reasons for denying compensability. We must also take into account the fact that the Form 43 promulgated by this commission does not instruct the preparer to specify the claimant’s name and address rather than the employee’s name and address.

In this case, the state provided timely notice of its intent to contest compensability with the Workers’ Compensation Commission via certified mail as required by § 31-297(b) and § 31-321. The state also mailed copies of said notice to the decedent’s address, which also happened to be the claimants’ address. The state fell short only with respect to the statutory requirement that the name of the claimant be included in the Form 43, which requirement was certainly not clear from the Form 43 itself. Moreover, there has been no showing that the claimants have suffered prejudice from this deficiency. Indeed, it is clear that the claimants were in receipt of the defective notice when their Motion to Preclude was filed on February 20, 1992. Given these circumstances, we believe that it would be both overly technical and inequitable to rule that § 31-297(b) was not satisfied by the state in this case. Consequently, we are reversing the commissioner’s decision on the claimant’s Motion to Preclude.

The trial commissioner is affirmed with respect to the claimants’ appeal, and reversed with respect to the respondents’ appeal. The case is remanded to the Second District for a determination on the merits.

Commissioners Angelo L. dos Santos and Michael S. Miles concur.

Workers’ Compensation Commission

Page last revised: January 21, 2005

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