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Bell v. Dow Corning STI, Inc.

CASE NO. 1777 CRB-4-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 30, 1995

IRVING BELL

CLAIMANT-APPELLANT

v.

DOW CORNING STI, INC.

EMPLOYER

and

ZURICH AMERICAN INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Christopher T. Goulden, Esq., Mihaly & Kascak, 925 White Plains Road, Trumbull, CT 06611.

The respondents were represented by Maureen E. Driscoll, Esq., Maher & Williams, P. O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the July 6, 1993 Order Denying Motion to Preclude of the Commissioner for the Fourth District was heard April 29, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the Fourth District Commissioner’s July 6, 1993 denial of his Motion to Preclude. Notice of his claim that he suffered a work-related back injury was received by the Fourth District office on December 5, 1991, and by the respondent employer on December 6, 1991. In the notice, the claimant stated his date of injury as being November 4, 1991. The commissioner found that he had in fact suffered the injury on October 29, 1991. The respondent employer did not file a notice of intention to contest compensability of the claim until February 6, 1992.

Pursuant to § 31-297 (b) C.G.S. (now § 31-294c (b)), an employer is required to file a Form 43 Notice to Contest Liability with the Workers’ Compensation Commission within 28 days after receiving a written notice of claim. Failure to do so results in the employer being “conclusively presumed to have accepted the compensability of the alleged injury or death and [the loss of any] right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.”1 It is undisputed that the employer did not meet that deadline in this case. Nevertheless, the commissioner denied the claimant’s Motion to Preclude because the date of injury in the notice of claim was found to be incorrect.

First, the respondents seek dismissal of this appeal on the ground that it is premature because the denial of a Motion to Preclude is not a final judgment. We disagree. As we decided in Marshall v. UTC/Pratt & Whitney, 11 Conn. Workers’ Comp. Rev. Op. 204, 1317 CRD-1-91-10 (1993), § 31-301 (a) clearly contemplates the existence of the power in the Compensation Review Board to hear appeals from decisions on motions. “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.” Id., 205-06. Consistent with that decision, we hold that the denial of a Motion to Preclude is a final judgment for the purposes of appeal to this Board.

We next address the claimant’s argument. At the time of the commissioner’s ruling on the claimant‘s motion, the decisions of this Board indicated that strict compliance with the notice requirements of § 31-294 was required in order for a notice of claim to support a § 31-297 (b) Motion to Preclude. See, e.g., Pereira v. State of Connecticut, 9 Conn. Workers’ Comp. Rev. Op. 9, 906 CRD-7-89-8 (1991); Estate of John Paul v. Perkin Elmer Corp., 7 Conn. Workers’ Comp. Rev. Op. 75, 684 CRD-7-88-1 (1989). In fact, this Board had determined in Pickard v. Manchester Gardens Condominium Ass’n., 10 Conn. Workers’ Comp. Rev. Op. 216, 1331 CRD-1-91-9 (1992), that a commissioner was entitled to deny a Motion to Preclude based on uncertainty surrounding the accuracy of the date of accidental injury in the notice of claim. That decision rested in part on Fuller v. Central Paving Co., 5 Conn. Workers’ Comp. Rev. Op. 92, 655 CRD-1-87 (1988), which was one of this Board’s leading cases requiring strict compliance with § 31-294 for preclusion to lie.

Our Supreme Court has since determined, however, that “[t]he rule of strict compliance adopted by the review division is not supported by either the plain language or the legislative history of § 31-297 (b). To the contrary, § 31-297 (b) is remedial legislation that should be liberally construed to accomplish its humanitarian purpose. Dubois v. General Dynamics Corporation, 222 Conn. 62, 67 (1992). Specifically, as noted above, it was enacted to require a prompt and thorough investigation of the employee’s claim so as to yield a specific disclaimer of liability and to avoid unnecessary delay in the adjudication of workers’ claims. As a result, if the notice of claim is sufficient to allow the employer to make a timely investigation of the claim, it triggers the employer’s obligation to file a disclaimer.” Pereira v. State of Connecticut, 228 Conn. 535, 542-43 n.8 (1994). It is thus clear from the Pereira decision that strict technical compliance with the requirements of § 31-294 should not be an absolute prerequisite to the granting of a Motion to Preclude. In light of Pereira, the question regarding the instant Motion to Preclude now becomes whether the notice of claim gave the employer sufficient notice to be able to investigate the claimant’s reported injury.

A commissioner ordinarily need not inquire beyond the face of the documents submitted in considering a Motion to Preclude. Where the accuracy of the specific elements of notice required under § 31-294 is questioned, however, the trier may look beyond the allegations of the written notice. Pickard v. Manchester Gardens Condominium Ass’n., supra, at 217. Here, such a question seemingly existed,2 and the commissioner made a finding that the claimant’s accident in fact occurred six days before the date of injury listed on the notice of claim. In retrospect, we do not think that such a finding was appropriate.

Although the notice provided by the claimant was sufficient to trigger the employer’s responsibility to investigate the claimant’s reported injury of November 4, 1991, we do not believe that it was legally sufficient to put the employer on notice that an injury might have occurred to the claimant at some other time, i.e. six days earlier. Unlike the minor defects in notice which prevented preclusion under the strict standard of review used in Pereira v. State of Connecticut, supra, at 9, and Salvaggio v. Candlewood Valley Bus Co., 6 Conn. Workers’ Comp. Rev. Op. 156, 731 CRD-7-88-5 (1989), the failure to include the correct date of injury in a notice of claim would normally constitute insufficient information for the employer to be able to investigate the employee’s claim. See Pickard v. Manchester Gardens Condominium Ass’n., supra, at 218; compare Quinn v. Standard Knapp, 1470 CRB-8-92-7 (Decided July 8, 1994). Thus, although the claimant’s notice was sufficient to support the granting of a Motion to Preclude as to any November 4, 1991 back injury, the notice would not be sufficient to support preclusion of the employer’s defenses as to any injury found to have occurred on any other date.

The commissioner could and should have made such a determination without making a finding as to the actual date of injury. As the only date provided by the claimant in his notice was November 4, 1991, the commissioner should have restricted his consideration of the claimant’s Motion to Preclude to whether or not preclusion should be allowed as to alleged injuries occurring on that date alone. Evidence regarding injuries that might have occurred on other dates, as they relate to the claimant’s disability resulting from a November 4, 1991 injury, should properly have been considered later in the proceedings, as the employer would not have been prevented from litigating the compensability of those injuries by the granting of the Motion to Preclude.

We therefore conclude that the commissioner should have granted the Motion to Preclude, but only as to liability caused by any back injury that occurred on November 4, 1991. Of course, the extent of disability caused by that injury may be contested by the employer, see Adzima v. UAC/Norden Division, 177 Conn. 107, 113-14 (1979), and would amount to nothing if in fact no injury actually occurred on that date. Notice was insufficient to preclude the employer from contesting the compensability of any back injuries found to have been sustained on any other date, however, and such issues may be litigated on remand.

The trial commissioner is reversed. Further proceedings will be maintained in accordance with this opinion.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 Public Act 93-228, Sec. 8 (b) has significantly changed the language of this provision so that an employer who fails to file a timely notice of intent to contest compensability may commence payment and still contest the employee’s right to receive compensation or the extent of his disability within one year from the receipt of written notice of claim. This provision was not in effect at the time of the claimant’s injury, however, and is not applicable to this case. See Iacomacci v. Trumbull, 209 Conn. 219 (1988); Dealmeida v. M.C.M. Stamping Corporation, 10 Conn. Workers’ Comp. Rev. Op. 21, 23-24, 1097 CRD-7-90-8, 1139 CRD-7-90-11 (1991) (changes to preclusion statute can not be given retroactive effect). BACK TO TEXT

2 The claimant’s motion sought to preclude the respondents from contesting liability or extent of disability “with regard to Claimant’s injuries sustained in the course of his employment on or about November 4, 1991.” (Emphasis added.) Had the Motion to Preclude not attempted to expand preclusion beyond a back injury occurring specifically on November 4, 1991, it would clearly have been improper for the commissioner to determine that the injury in fact occurred on October 29, 1991, as such a finding would have gone beyond the scope of the 30-C inquiry. Despite this attempt at expanded preclusion, however, we still think that the commissioner should have limited his findings in the manner discussed below. BACK TO TEXT

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