State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Gaffney v. City of Stamford

CASE NO. 2219 CRB-7-94-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 24, 1996

ELIZABETH GAFFNEY

CLAIMANT-APPELLANT

v.

CITY OF STAMFORD

EMPLOYER

and

ROLLINS, HUDIG, HALL GROUP

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Andrew F. Fink, Esq., Carron & Fink, 257 Riverside Ave., Westport, CT 06880-4822.

The respondents were represented by Maureen E. Driscoll, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

The Second Injury Fund was not represented at oral argument. Notice sent to Michelle Truglia, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 18, 1994 Finding and Award of the Commissioner acting for the Seventh District was heard September 22, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the November 18, 1994 Finding and Award of the Commissioner acting for the Seventh District. She argues on appeal that the trial commissioner erroneously ruled that she had not met the notice requirement of § 31-294 C.G.S. in filing her workers’ compensation claim. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant was employed by the respondent employer as a teacher on January 25, 1989. She alleged that she fell and bruised her left hand and left leg during the course of her employment on that date, and that she filed an accident report two days later with the principal of the school. The accident report did not indicate that the claimant sought medical treatment or lost time from work, and did not mention a head or eye injury. The claimant testified that she began noticing signs of injury to her left eye in the autumn of 1989, including blurred vision. She first sought treatment for the left eye on January 2, 1990. That month, she underwent retina surgery on the eye.

The claimant did not file a timely Notice of Claim with the employer or the Workers’ Compensation Commission. She testified that on January 6, 1990, she received a Form 43 Notice of Intention to Contest Liability for the retina surgery from her employer’s insurance agency. She also stated that on January 23, 1990, she stopped by a district office of this Commission and was told to file a written request for a hearing. The claimant did so on March 9, 1990--over one year after the date of injury. She argued, however, that her oral request for a hearing on January 23 while handing the clerk at the district office a copy of the Form 43 satisfies the exception to the § 31-294 notice requirement. The commissioner rejected her argument, dismissing the claim for failure to provide proper notice and questioning the claimant’s credibility with respect to the details of her injury and what she reported at that time. The claimant has appealed.

Before we reach the merits of this appeal, we must first address the respondents’ Motion to Dismiss the petition for review. The respondents contend that the Finding and Award was dated Friday, November 18, 1994. The claimant’s petition for review was filed on Tuesday, November 29, 1994, eleven days later. The respondents moved to dismiss the appeal on December 5, 1994, on the ground that the petition for review was filed too late under § 31-301(a) C.G.S. That section allows a party to file an appeal “at any time within ten days after entry of an award by the commissioner.” The ten-day appeal period begins to run on the day on which the appellant is sent meaningful notice of the commissioner’s decision. Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720 (1995); Conaci v. Hartford Hospital, 36 Conn. App. 298, 303 (1994).

Although the first page of the Finding and Award is dated November 18, 1994, the commissioner’s signature on the last page of the decision reads November 21, 1994. Therefore, notice of the decision was not sent to the claimant until at least November 21, 1994. Because the claimant filed her appeal on November 29, 1994, our only possible conclusion is that the petition for review was timely. The Motion to Dismiss is denied.

We may now address the merits of the claimant’s appeal. At the time of her injury, § 31-294 provided:

“. . . No proceedings for compensation under this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . . Such notice may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom, . . . and the name and address of the employee and of the person in whose interest compensation is claimed. If there has been a hearing or a written request for a hearing or an assignment for a hearing within said one-year period from the date of the accident . . . or if a voluntary agreement has been submitted within the applicable period, or if within the applicable period the employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as hereafter provided in this section, no want of such notice of claim shall be a bar to the maintenance of proceedings and in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning such personal injury and was prejudiced by the defect or inaccuracy of such notice. Upon satisfactory showing of such ignorance and prejudice, the employer shall receive allowance to the extent of such prejudice. . . .”

Compliance with this statute is necessary in order for this Commission to have subject matter jurisdiction over a workers’ compensation claim. Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 250, 1713 CRB-4-93-4 (April 17, 1995).

There is no dispute in this case that the claimant did not file a Form 30C Notice of Claim with her employer or the Workers’ Compensation Commission within one year of the January 25, 1989 injury. A first report of injury is not a claim for compensation, and generally does not put the employer on notice that the claimant is seeking the remedies provided by the Workers’ Compensation Act. Otero, supra, 250. In this case, the report did not mention the claimant’s eye injury at all, and claimed no incapacity as a result of the listed injuries. Also, the claimant had not yet sought medical treatment. This report would not satisfy the substance of the notice statute, and can not be considered the equivalent of a Notice of Claim. Compare Yuknat v. State, 3 Conn. Workers’ Comp. Rev. Op. 43, 274 CRD-2-83 (March 19, 1986) (totality of documents submitted to employer and district office provided all information required in § 31-294).

Under § 31-294, there are five possible exceptions to the notice requirement: a hearing, a written request for a hearing, or the assignment of a hearing within one year of the accident date; the submission of a voluntary agreement within the one-year period; or a furnishing of medical care for the injury to the employee within the year. DeLeon v. Jacob Bros., Inc., 38 Conn. Sup. 331, 336 (1981); Otero, supra, 249-50. The latter two exceptions are not at issue here, as the parties did not reach a voluntary agreement and as the employer did not provide the claimant with medical care. The claimant argues, however, that her oral request for a hearing at the district office together with her submission of a copy of the respondents’ Form 43 should be construed as satisfying the first set of exceptions to the notice requirement. We disagree.

Unlike the exceptions to the notice requirement based on the employer’s provision of medical care or the parties’ reaching a voluntary agreement, the hearing-based exceptions to the notice requirement do not assume pre-existing factual scenarios where the employer is clearly aware of the potential for a compensation claim. Our legislature has specified that failure to observe the one-year notice of claim requirement is excused when a hearing either has been held, assigned, or requested in writing within the year; in all of those situations, an employer would be apprised of the existence of a claim by receiving notice of the hearing. An oral request for a hearing would not accomplish the same result, and our legislature saw fit not to include such a request in the list of hearing-based exceptions to the notice requirement. This board is not in a position to broaden the express language of the statute, particularly where subject matter jurisdiction over a claim is implicated. Gesmundo v. Bush, 133 Conn. 607, 611 (1947); Walsh v. Waldron & Sons, 112 Conn. 579, 583-84 (1931). Thus, we cannot consider the respondents’ filing of a Form 43 disclaiming the compensability of the eye surgery as a valid ground for another exception to § 31-294.

Moreover, the trial commissioner indicated in her findings that the claimant’s “recollection and credibility are called into question with respect to what was reported and/or treated at the time of the incident and some three months later.” This board does not have the authority to reassess the credibility of the evidence on appeal, as that is solely the function of the trial commissioner. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995). Any decision based on a commissioner’s refusal to believe the testimony of a witness must be affirmed by this board. That consideration applies here.

Also, the claimant contended in her brief that she was unaware of any retinal damage caused by her fall until almost a full year had passed, and that the statute of limitations for filing her claim should thus be extended. We recently noted in Keegan v. Aetna Life & Casualty, 13 Conn. Workers’ Comp. Rev. Op. 340, 1793 CRB-1-93-8 (April 27, 1995), that this board could not manipulate the notice requirements of § 31-294c to take into account the particular situation of a claimant. “The fact is, under the Workers’ Compensation Act, a claimant is required to file a written claim within one year of any accidental injury arising out of and in the course of his or her employment if the claimant expects to preserve his or her right to be compensated for the results of that injury, whether they are foreseen by the claimant or not.” Id. The one-year time limit must apply here as well.

The trial commissioner’s decision is affirmed.

Commissioner George A. Waldron concurs.

COMMISSIONER AMADO J. VARGAS, DISSENTING. I respectfully dissent. The Appellate Court has stated: “The purpose of § 31-294 ... is to alert the employer to the fact that a person has sustained an injury which may be compensable... and that such person is claiming or proposes to claim compensation under the Act.” Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 303, (citations omitted), cert. denied 225 Conn. 916 (1993). In the instant case, within one year following the alleged injury, the claimant provided her employer with notice regarding the date and nature of the injury. It is clear that the employer had notice of the claimant’s alleged injury immediately following the incident, as indicated in the employer’s “Supervisor’s Report of Accident” dated January 26, 1989. (Claimant’s Exhibit No. 5). This form indicates that the claimant slipped and fell on January 25, 1989, and further indicates that the incident was investigated by the assistant principal and reviewed by the head administrator. Moreover, the employer’s Form 43 (Notice of Intent to Contest Liability) was mailed by the employer on January 5, 1990, within one year of the claimant’s alleged injury of January 25, 1989. The employer’s Form 43 states, in part, that “the respondents deny any causal relation between the current condition and a previously alleged injury of 1-25-89....” Claimant’s Exhibit No. 3 (emphasis added).

We have held that “substantial compliance with the notice content requirements set forth in § 31-294 sufficient to fulfill the purpose of the statute will toll the running of the statutory period.” Hayden-Leblanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3, 4, 1373 CRD-2-92-1 (Jan. 5, 1994) (citing McGowan v. Robin Michaels Beauty Center, 10 Conn. Workers’ Comp. Rev. Op. 121, 1246 CRD-3-91-6 (May 15, 1992); Estate of John Paul v. Perkin Elmer Corp., 7 Conn. Workers’ Comp. Rev. Op. 75, 684 CRD-7-88-1 (Sept. 5, 1989); Fuller v. Central Paving Co., 5 Conn. Workers’ Comp. Rev. Op. 92, 655 CRD-1-87 (April 6, 1988); Yuknat v. State, 3 Conn. Workers’ Comp. Rev. Op. 43, 274 CRD-2-83 (March 19, 1986), aff’d, 9 Conn. App. 425 (1987). In the instant case, the record clearly supports a conclusion that the claimant notified the employer of her alleged injury and claim for workers’ compensation benefits within one year following January 25, 1989. Furthermore, fundamental fairness and the humanitarian purpose of the Workers’ Compensation Act dictate that the claimant should be allowed to pursue her claim on the merits rather than have her claim denied in its entirety based upon a mere technicality. Accordingly, the claimant’s notice of claim should be deemed timely.

Workers’ Compensation Commission

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