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Solonche v. State of Connecticut/UCONN Health Center

CASE NO. 1987 CRB-5-94-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 9, 1995

DEVRA SOLONCHE

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/UCONN HEALTH CENTER

EMPLOYER

SELF-INSURED

and

ALEXSIS, INC.

SELF-INSURED ADMINISTRATOR

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by R. Bartley Halloran, Esq., Alfano, Halloran & Flynn, One Lewis Street, Hartford, CT 06103.

The respondent was represented by Ernie R. Walker, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the March 3, 1994 Ruling on Claimant’s Motion to Preclude of the Commissioner acting for the Fifth District was 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 Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the March 3, 1994 Ruling on the Claimant’s Motion to Preclude of the Commissioner for the Fifth District. They contend on appeal that the commissioner improperly found that the respondent employer failed to file a timely notice of intent to contest compensability pursuant to § 31-297(b) C.G.S. (now codified at § 31-294c(b) C.G.S.)

The claimant’s deceased spouse was an employee of the respondent University of Connecticut Health Center on November 18, 1991. During the course of his employment on that date, the decedent received a flu shot. He died later that day of an allergic reaction to the flu shot. The claimant lived with and was supported by the decedent at the time of his death. She gave notice to the respondent of her § 31-306 claim for compensation on March 12, 1992.

The employer filed a Form 43 entitled “Notice to Compensation Commissioner and Employee of Intention to Contest Liability to Pay Compensation” on March 20, 1992 with the Sixth District office of the Workers’ Compensation Commission. The record shows that the Form 43 promulgated by the commission instructed the preparer to file one copy with the commissioner’s office and to send the other copy to the employee. The Form 43 specifically indicates that the preparer should insert the name and address of the employee on the top of the form, which the employer did in this case. Nowhere does the standard Form 43 indicate that the claimant’s name belongs on the form, nor does it specify that the claimant should be sent a copy of the notice. Section 31-297(b), however, does specify that the claimant’s name, rather than the employee’s name, should be included on the form prescribed by the commissioners.

The commissioner in this case found that no evidence was presented that the employer ever sent notice to contest liability to the claimant. He further concluded that the employer never filed a notice to contest liability within 28 days of the claimant’s claim as required by § 31-297(b), and granted the claimant’s Motion to Preclude the respondents from contesting liability for the payment of benefits. The respondents have appealed from that decision.

As we just discussed in Walter v. State of Connecticut, 1694 CRB-2-93-4 (decided June 2, 1995), this Board believes that recent decisions by the Supreme and Appellate Courts of this state require us to take a less formalistic and uncompromising view of the notice requirements in § 31-294c and § 31-297(b). We held in Walter that the proper test to use in a case such as this one was to determine whether the employer’s notice to contest liability substantially complied with § 31-297(b) and gave the claimant adequate notice of the employer’s reasons for denying compensability. We also took into account that the Form 43 promulgated by the Workers’ Compensation Commission could be misleading in § 31-306 cases insofar as it did not instruct the preparer to include the claimant’s name and address rather than that of the employee.

Here, as in Walter, the employer sent timely notice of its intent to contest compensability to the Workers’ Compensation Commission via certified mail as required by § 31-297(b) and § 31-321. The two cases are also alike in that the employer sent a copy of the notice to contest to the decedent employee’s address rather than the claimant’s address, as required by § 31-297(b). The difference in Walter is that the claimant did receive actual notice of the notice to contest compensability, as she lived at the same address that the defective notice was sent to. Noting that the claimant was unable to show prejudice from the defect, we held that the respondents were in substantial compliance with § 31-297(b) in that case.

In this case, however, the defective notice was sent to the decedent employee in care of the law firm of “Albano, Halbron & Flynn” [sic] at the law firm’s address. The commissioner found that there has been no showing that the claimant ever received a notice to contest from the employer. Although we are unaware of any prejudice suffered by the claimant from this defect, it is less clear here than it was in Walter that the employer substantially complied with § 31-297(b).

In Robinson v. Miller d/b/a Rainbow Roofing, 7 Conn. Workers’ Comp. Rev. Op. 69, 686 CRD-1-88-1 (Aug. 29, 1989), this Board determined that a claimant’s notice of claim satisfied the requirement in § 31-294 that the employee and the person claiming compensation provide their addresses, even though the notice did not provide the address of the claimant’s residence. Instead, the notice of claim stated that the claimant was currently hospitalized at Hartford Hospital, and also gave the address of the claimant’s attorney. We held that “[w]hile the notice of claim may not have expressed an address in the traditional manner it did provide the respondents with a place where communications would reach the claimant as he was then hospitalized . . . with serious cervical and spinal cord injuries. In addition it also gave the address of his lawyer.” Id., 71. Similarly, in this case the Form 43 was not sent to the claimant’s residence, but was sent to the address of her lawyer, who represented the claimant at the time her claim for compensation was filed and at the time the Form 43 was received. Additionally, the claimant’s lawyer did not represent the decedent’s estate.

Although the employer did not show that the claimant received an actual copy of the notice to contest compensability, it is clear that her lawyer did receive such notice, and that a Motion to Preclude was filed by the claimant on August 25, 1992 discussing that particular defect in the notice. Given our decisions in Walter, supra, and Robinson, supra, and the fact that the claimant has not shown any prejudice from the defect in the notice to contest compensability, we do not think it would promote equity or justice to hold that § 31-297(b) precludes the employer from contesting compensability in this case. Therefore, we hold that the commissioner improperly granted the claimant’s Motion to Preclude.

The trial commissioner’s decision is reversed, and the case is remanded to the Fifth District for further proceedings on the merits.

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

Workers’ Compensation Commission

Page last revised: January 21, 2005

Page URL: http://wcc.state.ct.us/crb/1995/1987crb.htm

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