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Simmons v. Philip Bonhotel, D/B/A Bonhotel’s Lawn Maintenance

CASE NO. 1778 CRB-5-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 13, 1995

ROBERT SIMMONS

CLAIMANT-APPELLANT

v.

PHILIP BONHOTEL, D/B/A BONHOTEL’S LAWN MAINTENANCE

EMPLOYER

UNINSURED

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by David C. Leard, Esq., Manasse, Slaiby & Leard, 459 Prospect St., Torrington, CT 06790.

The respondent employer was represented by Richard L. Aiken, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033. The employer filed a brief but did not appear at oral argument.

The respondent Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, P. O. Box 120, 55 Elm Street, Hartford, CT 06141-0120. The Second Injury Fund did not file a brief.

This Petition for Review from both the July 6, 1993 Finding and Award of Dismissal and the July 6, 1993 Ruling on Claimant’s Motion to Preclude of the Commissioner acting for the Fifth District was heard June 10, 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 both the July 6, 1993 Finding and Award of Dismissal and the Ruling on Claimant’s Motion to Preclude of the Fifth District Commissioner. In the Finding and Award of Dismissal, the commissioner dismissed the claimant’s claim on the ground that the claimant did not meet his burden of proving that his back injury arose out of and in the course of his employment. The commissioner further found that the incident alleged by the claimant to have caused his injury occurred due to the claimant’s initiation of horseplay, and thus was not compensable. In the Ruling on Claimant’s Motion to Preclude, the commissioner found that the claimant’s notice of claim was defective in that it contained the incorrect date of alleged injury, and thus denied the claimant’s motion to preclude.

In support of his appeal, the claimant contends that it was improper for the commissioner to rule on the issue of horseplay because the respondent employer did not “give timely written notice that it was claiming a special defense of horseplay.” (Claimant’s Brief at p. 8). The claimant further contends that it was error for the trial commissioner to have granted a continuance of the formal hearing in order to allow the respondent employer (“employer”) to bring witnesses. In addition, the claimant contends that the trial commissioner improperly denied his motion to correct. We disagree, and find no error on the part of the trial commissioner.

This case involves the following relevant facts. The claimant was employed as a lawn maintenance worker for the employer, a family-run business. The claimant alleged that on August 30, 1990, while riding a lawn tractor, one of two teenage co-workers sprayed him with water from a hose which struck him in the back. The claimant alleged that an injury resulted to his back because the cold water caused him to move suddenly. At the first formal hearing on January 11, 1993, the employer, Philip Bonhotel, who was unrepresented by legal counsel, testified that he was told by two witnesses that the incident occurred during horseplay. The claimant’s attorney objected to his testimony because it was hearsay. The commissioner granted a continuance in order to allow the employer to bring in witnesses to the incident.

At the continued formal hearing on April 13, 1993, two of the claimant’s co-workers testified that they were present when the incident occurred, that it occurred in July, 1990 rather than August 30, 1990, and that the claimant had first sprayed them with water. The commissioner determined the co-workers’ testimony to be more credible than the claimant’s testimony. Moreover, the commissioner noted that the claimant himself never reported the injury to the employer, and that the claimant’s physician’s written medical history indicated that the claimant’s injury occurred because he had slipped on some wet grass. The commissioner concluded that the claimant failed to meet his burden of proving that he had sustained an injury which arose out of and in the course of his employment. In addition, the commissioner found that the incident alleged by the claimant to have caused his injury was the result of horseplay, and therefore was not a compensable injury. See Shedlock v. Cudahy Packing Co., 134 Conn. 672, 676 (1948).

The claimant contends in his appeal that the employer was barred from raising the defense of horseplay because the employer failed to raise that defense in its written disclaimer. In the July 6, 1993 Ruling on the Claimant’s Motion To Preclude the commissioner found that the claimant’s notice of claim was defective in that it stated the incorrect date of injury. Specifically, the commissioner found that the alleged injury occurred in July, 1990. The commissioner thus held that the claimant’s notice of claim, which stated that an alleged injury occurred on August 30, 1990, did not satisfy the notice requirements of § 31-294 C.G.S.1 and thus it did not trigger the preclusive effects of § 31-297(b) C.G.S.2 The claimant has not contested the commissioner’s determination that the date of injury in its notice of claim was incorrect. The Connecticut Supreme Court has stated:

...§31-297(b) is remedial legislation that should be liberally construed to accomplish its humanitarian purpose. Dubois v. General Dynamics Corp., 222 Conn. 62, 67, 607 A.2d 431 (1992). Specifically ... 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, 228 Conn. 535, 543, n. 8 (1994).

In Pereira v. State, supra, the defect in the claimant’s notice of claim was the reference to the employer as “Dept. of Children & Youth Services” instead of its full name, “State of Connecticut, Department of Children and Youth Services.” The Connecticut Supreme Court concluded that this defect “in no way prejudiced the defendant by hindering its ability to investigate the claim.” Pereira v. State, 228 Conn. 535, 542-43, n. 8. We have ruled that because the date of an alleged accidental injury is an essential requirement of notice under § 31-294 C.G.S., a claimant’s incorrect date of injury on his notice of claim may provide a sufficient basis for a commissioner to deny the preclusion of defenses. Pickard v. Manchester Gardens Condo. Assoc., 10 Conn. Workers’ Comp. Rev. Op. 216, 1331 CRD-1-91-9 (December 17, 1992). In Quinn v. Standard Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334, 1470 CRB-8-92-7 (July 8, 1994) we distinguished the facts in Pickard, supra, and held that in a repetitive trauma case, an error in the notice of claim constituted merely a de minimus error, where the date of injury was off by only one day.

In the instant case, the claimant’s notice of claim contained a date of injury which was incorrect by over thirty days, and thus the claimant’s notice failed to provide the employer with the information necessary to promptly investigate the claim. We thus affirm the trial commissioner’s denial of the claimant’s motion to preclude based upon the incorrect date on the notice of claim.3 Accordingly, the respondent was not precluded under § 31-297(b) from asserting the defense of horseplay.

The claimant contends in his appeal that the commissioner should not have allowed a continuance based on the employer’s failure to bring witnesses to the hearing. However, a commissioner’s decision to continue a formal hearing is discretionary under Administrative Regulations § 31-279-3 and § 31-279-4. The claimant’s contention in his appeal that he was subjected to a “trial by surprise” (Claimant’s Brief at p. 10) is not supported by the record. This Board has stated that “(i)t is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” Korpinen v. George A. Tomasso Co., 1700 CRB-8-93-4 (decided March 14, 1994) (quoting Connolly v. Connolly, 191 Conn. 468, 475-76 (1983); Osterlund v. State, 129 Conn. 591, 596 (1943)); see also Fusco v. TRW Geometric Tool, 4 Conn. Workers’ Comp. Rev. Op. 132, 134, 472 CRD-3-86 (1987).4 In the instant case, the commissioner advised the parties that the hearing would be continued in order to allow witnesses to appear regarding the employer’s allegation that the incident involved horseplay. We thus conclude that the claimant was sufficiently apprised that the issue of horseplay would be covered at the continued hearing on April 13, 1993.

The claimant further contends in his appeal that the trial commissioner improperly allowed testimony at the hearing regarding prior acts of horseplay, and improperly allowed questions designed to “bolster” the employer’s witnesses on direct examination. We disagree. Workers’ compensation commissioners have broad powers to inquire into the facts. Commissioners are not bound by common law or statutory rules of evidence, “but shall make inquiry, through oral testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” § 31-298 C.G.S.

The claimant further contends in his appeal that the trial commissioner improperly denied his Motion to Correct. The claimant contends that the motion to correct should have been granted because the claimant sought to add undisputed facts. In the motion to correct, the claimant seeks to add findings regarding the procedural history of the case, such as the dates of the informal and formal hearings. Because the proposed corrections would not alter the commissioner’s conclusion, the claimant’s challenge to the denial of the motion to correct must fail. Hill v. Pitney Bowes, Inc., 8 Conn. Workers’ Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990).

After thoroughly examining the record in this case, it is clear that the commissioner’s decision was dependent upon the weight and credibility afforded the evidence. We will not disturb conclusions which are so based. Neal v. UTC/Pratt and Whitney, 10 Conn. Workers’ Comp. Rev. Op. 163, 1199 CRD-8-91-3 (1992). It was within the province of the commissioner to resolve inconsistencies or contradictions in the evidence. Miller v. Kirshner, 225 Conn. 185, 198-99 (1993); Fair v. People’s Savings Bank, 207 Conn. 535, 538-42 (1988). As the conclusions reached from the facts found did not result from incorrect applications of law or from inferences illegally or unreasonably drawn from those facts, those conclusions must stand. Fair, supra, 539.

We , therefore, affirm the trial commissioner and deny the appeal.

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

1 Sec. 31-294 C.G.S. has subsequently been repealed, but similar language now appears in §31-294c(a). BACK TO TEXT

2 Sec. 31-297(b) C.G.S. has subsequently been deleted, but similar language now appears in §31-294c(b). BACK TO TEXT

3 The instant case is distinguishable from Bell v. Dow Corning STI, Inc., 1777-CRB-4-93-7 (January 30, 1995) because in Bell, the claimant insisted that the injury occurred on the date alleged in his notice of claim, and thus this Board concluded that the commissioner should have granted the claimant’s motion to preclude limited to the date of injury in his notice of claim. In contrast, in the case at hand, the claimant does not contest the commissioner’s finding that the date of injury in his notice of claim is incorrect, and thus it would be meaningless for the commissioner to have granted the claimant’s motion to preclude as to the incorrect date of injury. BACK TO TEXT

4 Korpinen v. George A. Tomasso Co., 1700 CRB-8-93-4 (decided March 14, 1994). (Ruling on Motion to Submit Additional Evidence) BACK TO TEXT

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Page last revised: January 21, 2005

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