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McKenna v. Thorne & Cleaves, Inc.

CASE NO. 3365 CRB-7-96-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 29, 1997

THOMAS MCKENNA

CLAIMANT-APPELLEE

v.

THORNE & CLEAVES, INC.

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Philip Spillane, Esq., Baker, Moots & Pellegrini, 46 Main St., P. O. Box 1319, New Milford, CT 06776.

At the time of oral argument, the respondent was represented by David Davis, Esq., McGann, Bartlett, & Brown, 281 Hartford Tpke., Vernon, CT 06066.

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 June 17, 1996 Finding and Award of the Commissioner acting for the Seventh District was heard January 10, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the June 17, 1996 Finding and Award of the Commissioner acting for the Seventh District. It argues on appeal that the trier improperly granted the claimant’s Motion to Preclude and denied the respondents’ Motion to Correct. We agree in part with the respondent’s argument, but affirm the trial commissioner’s decision nonetheless.

The trial commissioner found that the claimant alleged that he suffered a compensable injury when he slipped and fell on February 2, 1995. He filed a written notice of claim with this Commission and his employer on February 15, 1995. The respondent employer did not file a Form 43 notice of intent to contest liability until April 13, 1995, well after the 28-day time limit in § 31-294c(b) C.G.S. had apparently expired. The claimant filed a Motion to Preclude the respondent from contesting liability for the injury, which the commissioner granted.

Section 31-294c requires an employer to contest a claim “on or before the twenty-eighth day after he has received a written notice of claim.” (Emphasis added.) Section 31-321, in turn, states that any notice to be served under the Workers’ Compensation Act must be by “written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business.” The record shows that the claimant sent a copy of his Form 30C by certified mail to the Fifth District office. The employer’s address is listed on that form as “51 Main Street, New Milford, CT 06776.”

The trial commissioner found that David A. Cleaves, an incorporator of the respondent, had listed on the Certificate of Incorporation “c/o Cramer & Anderson, 51 Main Street, New Milford, CT 06776” as the business address. He also found that there was no evidence that the designation of the statutory agent for service (David Cleaves) or the business address was changed at the Secretary of State’s office. Based on the evidence, the respondent unsuccessfully sought correction of these findings. A look at Claimant’s Exhibit J shows that those corrections should have been granted. The New Milford address listed above was in fact listed as the business address of the statutory agent for service, not the business address of Thorne & Cleaves, Inc. The business address of the respondent itself was not filed with the Secretary of State.

Section 31-321 plainly requires notice to be sent to an employer’s place of business, rather than to the address of the statutory agent for service of process. See Bonin v. Thames Valley Steel, 1492 CRB-2-92-8 (decided Feb. 14, 1997). Although this board will overlook minor defects in a claimant’s notice as long as a defendant is not prejudiced in its ability to investigate claims; Walter v. State of Connecticut/Services for the Blind, 14 Conn. Workers’ Comp. Rev. Op. 107, 112, 1694 CRB-2-93-4 (June 2, 1995); we cannot allow preclusion of a claim in a case where the respondent’s ability to file a timely reply was compromised. Bell v. Dow Corning STI, Inc., 13 Conn. Workers’ Comp. Rev. Op. 109, 111-112, 1777 CRB-4-93-7 (Jan. 30, 1995).

The claimant argues in his brief that under Solonche v. State of Connecticut/ UConn Health Center, 14 Conn. Workers’ Comp. Rev. Op. 134, 1987 CRB-5-94-3 (June 9, 1995), notice in this case was adequate. In Solonche, this board held that an employer should not be precluded from defending a claim where it sent a Form 43 to a decedent employee in care of the claimant’s attorney, rather than to the claimant herself. We stated that “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. . . . [W]e do not think it would promote equity or justice to hold that § 31-297(b) precludes the employer from contesting compensability in this case.” The claimant argues that if “substantial compliance” in this manner can be held to defeat a Motion to Preclude, then it should be used to deem service of a Form 30C sufficient to uphold the granting of such a motion as well.

First, we note that preclusion of an employer’s right to defend a claim is a harsh remedy. Seldom is it more equitable to decide a matter based on a procedural defect rather than by reaching the merits of a case, absent prejudice to one of the parties. No such prejudice has been shown here. Second, the service of a Form 30C upon a statutory agent for service of process is far less likely to inform an employer that there is a claim against it than is the service of a Form 43 upon a claimant’s attorney who has already taken action in prosecuting a claim for his client. In the latter case, the parties have already been identified, and are cognizant of the existence of a claim. In the former case, the employer must be presumed unaware of the existence of a claim until it receives the Form 30C. Sending that notice to an agent for service of process could significantly delay the investigation of the claim, and is not the prescribed procedure under § 31-321.

We do not believe that the notice sent by the claimant in this case can be presumed to have reached the employer in a timely manner. Therefore, we hold that the commissioner erred by not granting the related portions of the claimant’s Motion to Correct, and reverse the granting of the Motion to Preclude.

However, our decision on this issue does not require a reversal of the award itself. The commissioner had the foresight to also address the merits of this case. He found that the claimant was an employee as of February 2, 1995, and that he presented uncontested evidence that he was paid wages for thirty-two hours of work through the date of the injury. The commissioner disregarded the employer’s claim that the claimant had been discharged the day before. He found that the claimant was totally disabled from February 13, 1995 to June 4, 1995, and awarded payment of medical bills and 17 weeks of unpaid total disability benefits.

The respondent argues that, in fact, the amount of time worked by the claimant during the week in question was contested, that he presented no evidence that he worked 32 hours, and that the overwhelming weight of the evidence supports a finding that he was fired before the date of his alleged injury. The respondent states that for the trier to find as he did, “he would have to specifically find or conclude that Mr. Olivieri [an independent subcontractor who was on the job site] lied, Mr. Olivieri’s employee lied, and that the billing for work done was fabricated and post-dated.” Brief, p. 7. It also states that “it was unreasonable for the trial commissioner to credit the testimony of the claimant” based on certain inconsistencies in his testimony.

Built into that argument, however, is the notion that this board has the power to reverse a commissioner’s decision to find a claimant’s testimony credible. We simply do not have that power as a reviewing body. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). A commissioner could chalk up inconsistencies in someone’s testimony to honest memory lapses just as easily as he could find them indicative of complete untrustworthiness. He conceivably could also decide that an employer who did not carry workers’ compensation insurance even though he had hired several employees was prone to inaccuracy in his own statements. (See January 16, 1996 Transcript, 41-43.) Whatever his decision in that regard, it is for him to make, and not this board.

We need only note that Sean McKenna, the claimant’s brother, testified that he and his sibling both reported for 32 hours of work for Thorne & Cleaves during the week the claimant was injured. (August 1, 1995 Transcript, p. 64.) The claimant testified to the circumstances of his injury and its physical effect on him. (Transcript, p. 13). The commissioner was free to credit this testimony over anything the respondent offered to the contrary. Webb, supra. Therefore, we must affirm his decision as to the merits of this case.

The granting of the Motion to Preclude is reversed, but the trial commissioner’s finding of a compensable injury and award of benefits is affirmed. To the extent that benefits due the claimant may not have been paid pending appeal of the commissioner’s decision, interest is awarded pursuant to § 31-301c(b) C.G.S.

Commissioners James J. Metro and John A. Mastropietro concur.

Workers’ Compensation Commission

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