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Drivas v. Fair Auto Park

CASE NO. 2279 CRB-7-95-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 28, 1996

MICHAEL DRIVAS

CLAIMANT-APPELLANT

v.

FAIR AUTO PARK

EMPLOYER

and

FIREMAN’S FUND INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Lawrence Peck, Jr., Esq., 179 Water St., Second Floor, P. O. Box 921, Torrington, CT 06790-0921.

The respondents were represented by Annmarie D’Attelo, Esq., Genovese, D’Attelo & Lerman, 29 S. Main St., Town Center, Suite 211-S, West Hartford, CT 06107-2438.

This Petition for Review from the January 25, 1995 Finding and Order 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 Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 25, 1995 Finding and Order of the Commissioner acting for the Seventh District. He argues on appeal that the commissioner erroneously denied his Motion to Preclude the respondents from contesting the compensability of his alleged injury. We affirm the trial commissioner’s decision.

The claimant filed a Form 30C Notice of Claim alleging that he suffered a heart attack arising out of and in the course of his employment with the respondent Fair Auto Park on May 29, 1994. The employer’s controller testified that the claimant did not work on that date, although he did work for the employer on May 23, 25, 27 and 28. The claimant also acknowledged that the heart attack actually occurred on the 28th. Although the claimant argued that the respondent employer was fully aware of the heart attack, which occurred at work, the trial commissioner denied his Motion to Preclude. The commissioner noted that the claimant was still free to pursue his claim on the merits, as no decision had been made regarding the compensability of his injury. The claimant has appealed the denial of his Motion to Preclude.

The claimant contends that the conclusion that preclusion could not lie because of the erroneous date in the Form 30C contradicts the purpose of § 31-294c(b). At one time, this board required strict compliance with the notice requirements of § 31-294b to support a claimant’s Motion to Preclude. See Pickard v. Manchester Gardens Condominium Ass’n, 10 Conn. Workers’ Comp. Rev. Op. 216, 1331 CRD-1-91-9 (Dec. 17, 1992). Our Supreme Court has since stated 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 [§ 31-294c(b)]. To the contrary, [the statute] is remedial legislation that should be liberally construed to accomplish its humanitarian purpose.” Pereira v. State, 228 Conn. 535, 543 n. 8 (1994).

In accordance with the Court’s remarks in Pereira, this board has abandoned the rule of strict compliance. Now, an employer’s obligation to file a disclaimer is triggered as long as the notice of claim is sufficient to allow the employer to investigate the claim in a timely manner. Id., 543 n. 8; Bell v. Dow Corning STI, Inc., 13 Conn. Workers’ Comp. Rev. Op. 109, 111, 1777 CRB-4-93-7 (Jan. 31, 1995). The claimant contends that the claimed defect in his Motion to Preclude could not have prejudiced the respondents’ investigation of this case, and that preclusion should thus have been granted. At oral argument, he cited Quinn v. Standard Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334, 1470 CRB-8-92-7 (July 8, 1994), in support of his position.

Although this board did excuse a one-day discrepancy in the notice of claim in Quinn, that case involved a repetitive trauma injury. “A de minimus inaccuracy in the date of injury in a repetitive trauma case . . . will [not] prevent a trial commissioner from granting preclusion.” Id., 336. A heart attack such as the one claimed here is not a repetitive trauma injury, however, and can be specifically located to time and place. Failure to include the correct date of injury in an accidental injury claim normally constitutes insufficient information for the employer to investigate the claim. Bell, supra, 112; Pickard, supra, 218. Legally, such notice cannot be presumed sufficient to notify an employer that an injury occurred on a different date. Bell, supra.

We cannot fault the trial commissioner on review for making a ruling consistent with that principle. Although we recognize the importance of strict adherence to the time constraints in the Workers’ Compensation Act in order to effectuate the legislative intent to provide a quick method of recovery by claimants for compensable injuries, see Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 204-05 (1993), we are also cognizant that preclusion is a harsh remedy. In a case where there is doubt as to the efficacy of a claimant’s notice, a trial commissioner’s decision to proceed on the merits of the case is not an unwise one. We thus affirm the trial commissioner’s decision here.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

Workers’ Compensation Commission

Page last revised: May 11, 2005

Page URL: http://wcc.state.ct.us/crb/1996/2279crb.htm

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