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DeMello v. Town of Cheshire

CASE NO. 3633 CRB-08-97-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 26, 1998

JOHN E. DEMELLO

CLAIMANT-APPELLANT

v.

TOWN OF CHESHIRE

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

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

The respondent was represented by Richard Aiken, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the June 23, 1997 Finding and Dismissal of the Commissioner acting for the Eighth District was heard February 20, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles

OPINION

DONALD H. DOYLE, JR., COMMISSIONER. The claimant has petitioned for review from the June 23, 1997 Finding and Dismissal of the Commissioner acting for the Eighth District. He argues on appeal that the trier erred by finding that his notice of claim was insufficient to meet the requirements of § 31-294c(a) C.G.S. We find error, and reverse the decision of the trial commissioner.

The facts of this case are not in dispute. The claimant, a police officer with the Town of Cheshire, discovered on January 26, 1993 that he suffered from hypertension. He filed a document entitled “Notice of Claim for Compensation” on June 11, 1993 that states, “[n]otice is hereby given that the undersigned, who while in the employ of the Cheshire Police Department at Cheshire on January 26, 1993 sustained injuries which are compensable under Section 7-433c of the General Statutes of the State of Connecticut. The nature of the injury is hypertension.” Joint Exhibit 1. The self-insured respondent Town of Cheshire filed a notice of its intention to contest this claim on July 6, 1993, but subsequently accepted the § 7-433c claim and paid benefits to the claimant.

After receiving those benefits, and long after the § 31-294c one-year filing period from the date of injury had elapsed, the claimant made a claim that his hypertensive condition arose out of and in the course of his employment with the town, and sought benefits under the Workers’ Compensation Act. The trial commissioner ruled that the notice of claim failed to provide sufficient notice to the respondents so that they might make a timely investigation of the claim, and was thus inadequate under § 31-294c(a). Accordingly, she dismissed the claim. In an accompanying Memorandum of Decision, the commissioner explained that the claimant’s notice would not have alerted the employer to investigate the circumstances of the injury, as § 7-433c does not require that a causal relationship between employment and hypertension or heart disease be shown. She stated that the three-year time period that had elapsed between the date of injury and the filing of the claim would make an investigation of that claim virtually impossible. The trier also emphasized that the claimant’s notice did not mention the place of the incident, which would be necessary for an investigation if causal relationship was an issue. The claimant has appealed the trial commissioner’s decision.

Section 31-294c(a) provides that no claim under the Workers’ Compensation Act can be maintained unless a written notice for compensation is given within one year of the date of an accident. Notice may be given to either a commissioner or the employer, “and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, . . . and the name and address of the employee and of the person in whose interest compensation is claimed.” Section 31-294c(c) discusses exceptions to this notice requirement, including situations where a hearing has been held or requested in writing within one year of the accident. It provides that “[n]o defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice. Upon satisfactory showing of ignorance and prejudice, the employer shall receive allowance to the extent of the prejudice.”

We acknowledge that there is a difference between the quantum of proof required to make a successful claim under § 7-433c and a successful claim under Chapter 568, and that our Supreme Court’s holding in Collins v. West Haven, 210 Conn. 423 (1989) (claimant who filed a Form 30C simultaneously complied with the notice requirements of § 7-433c), does not automatically imply that notice for § 7-433c purposes amounts to notice for § 31-294c purposes as well. However, the fact that the claimant’s notice specifically referenced § 7-433c does not categorically prevent it from satisfying § 31-294c. While the trier’s decision addressed legitimate issues regarding the claimant’s entitlement to Chapter 568 benefits, it failed to take into account the language of § 31-294c regarding defects in notice and the requirement of a showing of prejudice. This is not a case about a Motion to Preclude, where a defect in the notice that prevents the employer from immediately investigating the claim is fatal. See, e.g., Taylor v. Stamford, 3515 CRB-7-97-1 (May 6, 1998). As the Collins court pointed out, there are no separate forms for a § 7-433c claim and a Chapter 568 claim. Id., 431. The form of notice prescribed by § 31-294 requiring only “simple language” would seemingly also apply to § 7-433c claims, insofar as § 7-433c claimants are compensated in the same amount and in the same manner as Chapter 568 prescribes.

Assuming that the respondent would not have investigated the claim immediately because the notice filed with the employer in June 1993 specified § 7-433c instead of Chapter 568, the document itself still listed the employee-claimant’s name, the date of the injury, an allegation that it occurred “while in the employ of the Cheshire Police Department at Cheshire,” and the nature of the injury (hypertension). When the claimant later chose to pursue benefits under Chapter 568, the contents of that document filed several years earlier satisfied the basic definition of notice under § 31-294c. Whether or not the place of the injury was insufficiently specified, or the claimant’s choice of § 7-433c benefits instead of workers’ compensation benefits prevented timely investigation of the claim, is part of a separate issue that requires the employer to show that it was prejudiced by the defects in the notice and that it was ignorant of the circumstances of the injury. The employer was not required to make that showing below. Therefore, the trier’s decision must be reversed and the case remanded for additional proceedings consistent with this opinion.

Commissioner Michael S. Miles concurs.

JESSE M. FRANKL, CHAIRMAN, DISSENTING. I would affirm the trial commissioner’s decision. Both Collins v. West Haven, 210 Conn. 423 (1989), and Bakelaar v. West Haven, 193 Conn. 59 (1984), recognize that recovery under § 7-433c is not premised upon a claimant demonstrating a causal connection between his employment and his injury. Even though the § 31-294c notice requirement only requires “simple language,” the claimant here provided extra information: he specified that he was proceeding under § 7-433c. As the Court noted in Bakelaar, § 7-433c is not a workers’ compensation statute. Id., 68-69.

Contrary to the majority’s implications, § 31-294c is more than just a requirement that a claimant provide a checklist of the kind of information that is also found in a First Report of Injury. The purpose of § 31-294 “is to ensure that an employer is aware that an employee has sustained a potentially compensable injury, and that such a person is claiming or proposes to claim workers’ compensation benefits.” Cislo v. Shelton, 16 Conn. Workers’ Comp. Rev. Op. 14, 15, 2291 CRB-4-95-2 (Oct. 4, 1996) (emphasis added); see also Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 1713 CRB-4-93-4 (April 17, 1995). It was entirely reasonable for the trial commissioner, acting as the finder of fact, to conclude that the notice provided by the claimant in this case would not have informed his employer that he was proposing to claim workers’ compensation benefits, as it specifically referenced only § 7-433c. Thus, the notice provided by the claimant did not function as a valid notice of a workers’ compensation claim under § 31-294c, either at the time it was filed or three years later.

In my opinion, there is little difference between this case and the recent case of Buck v. General Dynamics Corp./Electric Boat Division, 3324 CRB-2-96-4 (Jan. 21, 1998), in which this board held that the filing of a claim under the Longshore Harbor Workers’ Compensation Act did not by itself indicate that the claimant intended to pursue benefits under Chapter 568. Notably, in a similar case where the claimant made a claim for “compensation benefits monetary and medical, under the [LHWCA] & State of Connecticut,” this board held that notice was sufficient to inform the employer that the claimant might be pursuing benefits under the Connecticut Workers’ Compensation Act. Algiere v. General Dynamics Corp./Electric Boat Division, 3466 CRB-8-96-11 (Jan. 27, 1998). The distinction between those two cases is also applicable here. The claimant did not indicate that he would be seeking anything other than § 7-433c benefits on his claim form, as was the case in Buck. The employer would thus not have been put on notice that the claimant was alleging a causal connection between his work and his injury that might entitle him to benefits under Chapter 568, and would not have investigated that portion of the claim. The trial commissioner properly decided that the claimant’s notice was insufficient under § 31-294c, and I would affirm her decision.

Workers’ Compensation Commission

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