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Fleming v. New Haven Register

CASE NO. 1945 CRB-3-94-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 6, 1995

JAMES FLEMING

CLAIMANT-APPELLANT

v.

NEW HAVEN REGISTER

EMPLOYER

and

NORTHBROOK PROPERTY INS. CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by David J. Morrissey, Esq., 203 Church St., P. O. Box 31, Naugatuck, CT 06770.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the January 3, 1994 Finding and Denial of the Commissioner acting for the Third District was heard January 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 3, 1994 Finding and Denial of the Commissioner for the Third District. He argues on appeal that the commissioner erred by denying his Motion to Preclude. We affirm the trial commissioner’s decision.

The claimant filed a Notice of Claim with the Third District office on August 11, 1987, claiming that he suffered two compensable injuries: grand mal seizures on or about April 1, 1986, and anxiety, nervousness, severe depression and emotional distress on or about mid-October 1986. The respondent employer filed a Form 43 Notice of Intention to Contest Liability on August 24, 1987 alleging that no accident occurred, and that the claimant’s conditions are all medical problems unrelated to the claimant’s employment. This notice was sent by regular mail, however, and not by certified mail as prescribed by § 31-321 C.G.S. The claimant filed a Motion to Preclude pursuant to § 31-297(b) C.G.S. (now § 31-294c(b) C.G.S.), which was initially denied by the commissioner because “[t]he factual situation presented does not support a preclusion and the consequences that would flow from it.” On appeal, this Board remanded the case for further findings and an articulation of the legal basis of the commissioner’s denial of preclusion. Fleming v. New Haven Register, 8 Conn. Workers’ Comp. Rev. Op. 108, 109-110, 827 CRD-5-89-2 (June 19, 1990).

On remand, the commissioner found that the claimant had a considerable medical history of hypertension, anxiety, arteriosclerosis, alcoholism and depression. The claimant’s grand mal seizure had occurred two months after Dr. Bizzozero, the claimant’s treating physician, took him out of work, and at a time when the claimant was subject to stress from a failing relationship with his girlfriend and the severe illness of his mother, whom he lived with. The commissioner noted that no cause for the seizure was ever determined. When the claimant returned to work in the fall of 1986, he was under no restrictions. His last day of work was December 9, 1986; in January, 1987, he had another seizure whose cause was unknown, and was hospitalized with severe depression, hypertension, probable seizure disorder, encephalopathy, arteriosclerotic heart disease and angina. The claimant had recently attempted changes in his relationship with his girlfriend, and had moved away from his mother. Based on the testimony of several doctors, the commissioner concluded that the claimant had not proven that any of his conditions had arisen out of and in the course of his employment, and denied the Motion to Preclude. The claimant has again appealed from that decision.

The claimant argues that the commissioner erred by requiring the claimant to demonstrate a prima facie case of a compensable injury in order for his Motion to Preclude to lie. Section 31-297(b) provides that an employer is conclusively presumed to have accepted compensability of an alleged injury if notice contesting liability is not filed within the twenty-day (under § 31-294c(b), 28-day) period prescribed by the statute. We need not reach that issue, however, because of two other obstacles that stand in the way of the claimant’s Motion to Preclude in this case.

First, we note our Supreme Court’s recent decision in Pereira v. State of Connecticut, 228 Conn. 535, 542-43 n.8 (1994). There, this Board’s rule of strict compliance in evaluating Motions to Preclude was criticized by the Court, which stated that any notice of claim sufficient to allow an employer to make a timely investigation of a claim triggers the employer’s obligation to file a disclaimer. Taking into account the spirit of the Pereira decision, we nevertheless held in Bell v. Dow Corning STI, Inc., 13 Conn. Workers’ Comp. Rev. Op. 109, 1777 CRB-4-93-7 (Jan. 30, 1995), that the failure to include the correct date of injury in a notice of claim normally constitutes insufficient information for an employer to be able to investigate that claim. See also Pickard v. Manchester Gardens Condominium Ass’n., 10 Conn. Workers’ Comp. Rev. Op. 216, 218, 1331 CRD-1-91-9 (Dec. 17, 1992).

Here, the claimant alleged an April 1, 1986 date of injury and a mid-October 1986 date of injury. As to the former, the August 11, 1987 notice of claim was untimely on its face, and could not have supported a Motion to Preclude. As to the latter, the claimant’s allegations of “anxiety, nervousness and severe depression and emotional distress . . . necessitating psychiatric treatment” were not allegations of accidental injuries, but repetitive trauma injuries which arguably led to a January 1987 seizure. We have held, however, that “the date of injury of a repetitive trauma is the last day of exposure or employment as a matter of law.” Campbell v. Manchester Memorial Hospital, 13 Conn. Workers’ Comp. Rev. Op. 157, 1754 CRB-1-93-6 (March 8, 1995) (emphasis in original), citing Borent v. State, 33 Conn. App. 495, 499 (1994).

In this case, there is no allegation of a separate date of exposure, so the last date of employment is the operative date of injury. The last date of the claimant’s employment with the respondent employer was December 9, 1986, which is not the date of injury alleged by the claimant in the Notice of Claim. Consequently, as we held in Bell, supra, the failure to include the correct date of injury renders the Notice of Claim insufficient to support the claimant’s Motion to Preclude, as the employer cannot be deemed to have been sufficiently notified of the details of the injury to timely investigate the claim.

We also note that the Motion to Preclude is premised on the employer’s failure to send his Form 43 to the claimant and this Commission via personal service or registered or certified mail as prescribed by § 31-321. It is true that this Board in the past has held that a Form 43 must be served pursuant to § 31-321 procedure. Skorupski v. Commercial Union Insurance Co., 2 Conn. Workers’ Comp. Rev. Op. 133, 135, 338 CRD-3-84 (April 1, 1985). See also Timothy v. Upjohn Co., 2 Conn. Workers’ Comp. Rev. Op. 1, 150-CRD-3-82 (Feb. 25, 1983), appeal dismissed, 3 Conn. App. 162 (1985). We continue to adhere to the requirements of that statute today. See In re: Employee Staffing of America, 1395 CRB-3-92-3 (decided April 21, 1995) (§ 31-321 must be strictly complied with where fine imposed upon respondent who failed to appear at noncompliance hearing). However, we are also aware of the importance that equitable considerations may play in the application of the statute. See Jimenez v. Montero, 1826 CRB-4-93-8 (decided May 4, 1995) (attempts of respondent to avoid service of process precluded him from claiming that he was denied due process because certified mail not actually accepted).

In Pereira, supra, our Supreme Court made it clear that § 31-297(b) is “remedial legislation that should be liberally construed to accomplish its humanitarian purpose.” Id., 543 n.8. It would be inconsistent with the spirit of that decision for us to ignore the realities of this case by strictly applying § 31-321 to the Motion to Preclude. Specifically, we note that the claimant and the Commission both received the employer’s Form 43 in a timely manner, and no prejudice was done to the claimant by the employer’s failure to send the Form 43 via certified mail. We also note that the form itself simply states that “two copies of this notice are to be made, one to be filed at the Commissioner’s office, the other to be sent to the employee.” Although this would not excuse noncompliance with § 31-321 if prejudice had been done to the claimant by the failure to properly serve the Form 43, in this case, the claimant was in fact apprised of the employer’s intent to contest liability within the twenty-day period prescribed by § 31-297(b). Therefore, in the spirit of Pereira and our decision in Bell, supra, we hold that the employer’s failure to comply with the express requirements of § 31-321 was not a sufficient ground for preclusion to lie under the specific facts of this case.

The trial commissioner’s decision is affirmed.

Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.

Workers’ Compensation Commission

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