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Tower v. Miller Johnson, Inc.

CASE NO. 3946 CRB-08-98-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 22, 2000

CYNTHIA TOWER, Dependent Widow of JOHN TOWER (Deceased)

CLAIMANT-APPELLEE

v.

MILLER JOHNSON, INC.

EMPLOYER

and

UTICA MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by John B. Cantarella, Esq., Cantarella & Burton, 215 Washington Street, Suite 200, Hartford, CT 06106.

The employer and Utica Mutual were represented by G. Randall Avery, Esq., Avery & Crone, 25 Third Street, Stamford, CT 06905.

Fox Press Incorporated was represented by David Schoolcraft, Esq., Duhamel & Schoolcraft, 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.

This Petition for Review from the December 9, 1998 Ruling on Motion to Preclude of the Commissioner acting for the Eighth District was heard November 19, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and George A. Waldron.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the December 9, 1998 Ruling on Motion to Preclude of the trial commissioner acting for the Eighth District. In that decision, the trial commissioner granted the claimant’s Motion to Preclude the employer from contesting the claimant’s workers’ compensation claim pursuant to § 31-294c(b). In support of their appeal, the respondents contend that the trial commissioner erred in granting the Motion to Preclude because they allege an incorrect date of injury was provided on the Notice of Claim. Additionally, the respondents argue that the trial commissioner did not have jurisdiction to grant the Motion to Preclude because there was no medical evidence that the decedent’s injury was causally related to his employment.

The trial commissioner found the following relevant facts. The claimant was married to John Tower (“decedent”) on June 15, 1985. The decedent was employed by the respondent employer from March of 1988 until October 30, 1995. During that time period he was exposed to chemicals used in the printing industry. The claimant testified that when her husband came home from working at the respondent employer, he would have a considerable amount of black on him and he would have an odor to him. The decedent was employed for two days by Dean Litho, November 1 and November 2, 1995, during which time he filled out paperwork and was given a tour of the facility. The claimant testified that when the decedent returned from work on those two days there was no odor or black on him.

The decedent experienced pain for approximately four weeks before his first emergency room visit on November 1, 1995. On November 5, 1995, the decedent was diagnosed with pancreatic cancer, from which he died February 18, 1996. On August 6, 1996, the claimant mailed a Form 30C Notice of Claim, which was received by the employer and the workers’ compensation commission on August 8, 1996. On the Form 30C, the claimant identified herself as the widow of John Tower. Additionally, the Form 30C provided the following information: (1) an alleged date of injury of November 5, 1995, the date the decedent was diagnosed with pancreatic cancer; (2) the injury was described as pancreatic cancer due to years of chemical exposure in the printing industry; and (3) the respondent employer, the decedent’s last employer where he was exposed to chemicals, was properly identified. The respondents failed to contest the Form 30C within twenty-eight days.

We will first address the respondents’ contention that the trial commissioner erred in granting the Motion to Preclude because the Notice of Claim lists the date of injury as November 5, 1995, on which date the decedent was no longer working for the respondent employer. At one time, this board required strict compliance with § 31-294c in order for preclusion to lie. Our Supreme Court subsequently stated that the rule of strict compliance was unsupported by the language of the statute or its legislative history, and was contradicted by the remedial purpose of the statute. Pereira v. State of Connecticut, 228 Conn. 535, 542-43 n.8 (1994). The proper test in granting a Motion to Preclude is whether the notice of claim “is sufficient to allow the employer to make a timely investigation of the claim….” Chase v. State, 45 Conn. App. 499, 504 (1997); see also Storey v. Hendel Petroleum Co., 3581 CRB-1-97-4 (June 10, 1998).

“Although minor errors in a notice of claim will no longer prevent preclusion, the basic elements of a notice of claim must still be present in order to trigger the employer’s responsibility to investigate the claim promptly.” Bennings v. State of Connecticut, 14 Conn. Workers’ Comp. Rev. Op. 350, 2105 CRB-3-94-7 (Sept. 22, 1995); see also Belletto v. Wilson Motors, Inc., 15 Conn. Workers’ Comp. Rev. Op. 223, 2257 CRB-4-95-1 (April 29, 1996). We have held that in repetitive trauma cases, “a de minim[i]s inaccuracy in the date of injury... will not run afoul of the requirements of Sec. 31-294 nor will it prevent a trial commissioner from granting preclusion.” Quinn v. Standard Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334, 336, 1470 CRB-8-92-7 (July 8, 1994), appeal dismissed for lack of final judgment, 40 Conn. App. 446 (1996).

In the instant case, the trial commissioner found that the Notice of Claim properly provided November 5, 1995 as the date of injury as that was the date that the decedent was diagnosed with pancreatic cancer, and the notice was alleging an occupational disease. (Finding ¶ A); see Green v. General Dynamics Corp., 245 Conn. 66 (1998). In the instant case, the facts as found by the trial commissioner indicate that the Notice of Claim provided sufficient information to ensure that the respondents had an ample opportunity to undertake an immediate investigation. Accordingly, we find no error in the trial commissioner’s granting of the Motion to Preclude. See Chase, supra.

In further support of their appeal, the respondents argue that the trial commissioner erred in denying their Motion to Correct, because said motion included undisputed facts which make it “clear that the cause of the decedent’s condition is unknown, absent speculation and conjecture.” (Respondents’ Brief at 4). In effect, the respondents are arguing that in order for a Motion to Preclude to be granted, a claimant must first prove that the alleged injury was caused by his employment. The Appellate Court addressed this issue in Chase, supra, and specifically held that whether the claimant has a claim which would be successful on the merits is not relevant to a determination of a Motion to Preclude. Id. at 507; see also Barron v. City Printing Co., 55 Conn. App. 85, 90 (1999). The court in Chase explained as follows:

The statute in no way authorizes a retrospective review of the merits of the claim in order to address the question of preclusion. If we were to adopt the defendant’s contention, the twenty day1 rule of § 31-297(b) [now § 31-294c] would be meaningless. A notice contesting liability would not be precluded, even if late, because the defendant would have a chance to contest the claim.
Chase, supra, at 507.

The trial commissioner’s decision is affirmed.

Commissioners Stephen B. Delaney and George A. Waldron concur.

1 Section 31-297(b) has been recodified in § 31-294c, and the twenty day period in which to contest a Notice of Claim has been changed to twenty-eight days. BACK TO TEXT

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