State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Passarelli v. City of Norwalk

CASE NO. 3984 CRB-07-99-02

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 22, 2000

DENISE PASSARELLI

CLAIMANT-APPELLEE

v.

CITY OF NORWALK

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Bernard Pitterman, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

The respondent City of Norwalk was represented by Colleen Zingaro, Esq., Office of Corporation Counsel, 125 East Avenue, City Hall, Norwalk, CT 06856.

This Petition for Review from the February 9, 1999 Ruling on Claimant’s Motion to Preclude by the Commissioner acting for the Seventh District was heard August 6, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The respondent City of Norwalk has petitioned for review from the February 9, 1999 Ruling on Claimant’s Motion to Preclude by the Commissioner acting for the Seventh District. It alleges that the trier erroneously found the claimant’s Form 30C to be in compliance with § 31-294c(a), thereby triggering the preclusive effect of § 31-294c(b) upon the respondent’s failure to file a timely disclaimer. We disagree with the respondent’s allegation of error, and affirm the decision of the trial commissioner.

On or about May 28, 1998, the claimant sent via certified mail a Form 30C “Notice of Claim for Compensation” that she and her attorney had prepared. This document, which is a standardized form prescribed by this commission for the filing of workers’ compensation claims, was received shortly thereafter by both the employer and this Commission. Pursuant to § 31-294c(a) C.G.S., a notice of claim must contain “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.” The claimant’s requisition for benefits included her name and address, her employer’s name and address, the situs of her injury (Norwalk), the date of her injury (April 30, 1998), and a description of the injury that read: “Fibromyalgia/Myofacial pain due to repetitive nature of job.” The notice gives no further detail, as the Form 30C does not expressly solicit other types of information.

An employer who wants to contest its alleged liability to pay compensation is required by § 31-294c(b) to respond to a written notice of claim within 28 days.1 The respondent did not file a Form 43 Notice of Intention to Contest Liability until December 7, 1998, when its representative hand-delivered a copy of such form to the claimant and to the trial commissioner at an informal hearing. Over 180 days had elapsed since the claimant sent out her Form 30C, and she had earlier filed a Motion to Preclude the respondent from contesting liability for her injury. Despite the apparent tardiness of its disclaimer, the respondent opposed that motion on the ground that the description of the injury in the Form 30C was too vague to trigger its investigative responsibilities. Though the purpose of § 31-294c is to require employers to promptly and thoroughly investigate a claim so as to yield a specific disclaimer of liability; Pereira v. State, 228 Conn. 535, 542-43 n.8 (1994); a Motion to Preclude may only be granted if the notice of claim contains sufficient information for the employer to be able to pursue such an inquiry. Taylor v. Stamford, 3515 CRB-7-97-1 (May 6, 1998); Belletto v. Wilson Motors, Inc., 15 Conn. Workers’ Comp. Rev. Op. 223, 224, 2257 CRB-4-95-1 (April 29, 1996).

The trial commissioner found that the claimant’s Form 30C substantially complied with the requirements of § 31-294c(a), which obligated the respondent to investigate the circumstances of the alleged compensation claim. In her decision, she cited Shira v. National Business Systems, 8 Conn. Workers’ Comp. Rev. Op. 140, 840 CRD-6-89-4 (Aug. 16, 1990), for the proposition that a claimant need only state the nature of her injury in simple language, rather than providing a medical diagnosis to her employer. She also rejected the respondent’s contention that, because this alleged injury was the result of repetitive trauma, the claimant misled her employer by supplying an exact date of injury. “In repetitive trauma cases, it is settled law that the date of injury is the last day of exposure to the work-related incidents of repetitive trauma, which is usually the last date of employment. Borent v. State, 33 Conn. App. 495, 499-500 (1994). . . . [T]he claimant’s reference to a specific date of injury on the Form 30C . . . is consistent with the requirements of C.G.S. § 31-294c(a) and the case law interpreting said provision.” Findings, ¶¶ 16, 18. Thus, the commissioner granted the claimant’s Motion to Preclude, thereby eliciting this appeal from the respondent.

Whether a notice of claim avers sufficient information to trigger an employer’s investigative responsibilities is a question of law rather than fact. Chase v. State, 45 Conn. App. 499, 508 (1997), citing Pereira, supra; Russell v. Mystic Seaport Museum, Inc., 52 Conn. App. 255, 271 (1999) (Dupont, J., dissenting); Del Toro v. Stamford, 3731 CRB-7-97-11 (Oct. 22, 1999) (Miles, C., dissenting). In reviewing the commissioner’s ruling below, this board must independently decide whether she correctly applied the law to the contents of the Form 30C that was before her. We cannot simply defer to her interpretation of the law, no matter how acute her reasoning. Pagan v. Paparazzo’s Son, 6 Conn. Workers’ Comp. Rev. Op. 38, 40-41, 653 CRD-5-87 (Sept. 30, 1988). In analyzing cases such as this one, we take heed that the guiding principle behind § 31-294c is its remedial nature. The statute should be “liberally construed to accomplish its humanitarian purpose,” i.e., to require prompt investigation of claims by employers, and to minimize delay in the payment of benefits. Chase, supra, 503.

Our Supreme Court has instructed this Commission that perfect compliance with § 31-294c need not be achieved in order for a Motion to Preclude to be granted; minor defects may be overlooked as long as the employer is not unduly prejudiced. Russell v. Mystic Seaport Museum, Inc., 52 Conn. App. 255, 261 (1999), citing Pereira, supra; see also, Chase, supra, 504; Del Toro, supra (Miles, C., dissenting). With respect to repetitive trauma injuries, a precise definition of the date of injury is often impossible due to the gradual etiology of the malady. Instead, as the trier observed, the last date of exposure—usually the last day of employment—is taken to be the injury date for notice purposes. Russell, supra, 261-62. This board has recently held that a claimant need not reference the entire timespan of alleged workplace exposure in her Form 30C as opposed to the last date of cumulative trauma. Rice v. Craft Works/Genovese, 3665 CRB-3-97-8 (Feb. 13, 1998) (sufficient notice was provided to support Motion to Preclude). The respondent accordingly cannot prevail on its argument that the claimant’s notice was defective because it listed a specific date of injury for her repetitive trauma claim. See also, Bonin v. Thames Valley Steel, 1492 CRB-2-92-8 (Feb. 14, 1997) (accuracy of injury date generally more crucial in accidental injury cases than in repetitive stress cases, due to the broader temporal focus of the investigation); Quinn v. Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334, 1470 CRB-8-92-7 (July 8, 1994).

The key issue in this case is the sufficiency of the injury description itself. The respondent attempts to analogize the imprecise Forms 30C filed in Belletto, supra, and Fleming v. New Haven Register, 14 Conn. Workers’ Comp. Rev. Op. 263, 1945 CRB-3-94-1 (Sept. 6, 1995), with the Form 30C that the claimant filed here. In Bonin, supra, we observed that “[i]n both Fleming and Belletto, the date of injury in the notice of claim was significantly different from the last date of the repetitive trauma, and the circumstances of the claimants’ injuries were complicated enough that their employers could have failed to appreciate the connection between the alleged injuries listed in the Forms 30C and prior stress at the workplace.” The respondent contends that the allegedly defective injury description in the instant case is akin to the inaccuracies of Fleming and Belletto, because the employer is being asked to investigate an entire timeline rather than a specific occurrence, and without a designated body part to focus on, it is not possible to conduct a meaningful inquiry. “The effect of this omission . . . is the same. The error is not de minimis2, but rather a failure to satisfy a statutory requirement.” Brief, 7.

The claimant’s Form 30C described her repetitive stress injury as “Fibromyalgia/Myofacial pain.” Taber’s Cyclopedic Medical Dictionary, 16th Edition, lists fibromyalgia as another name for fibromyositis, which is described as follows: “A group of common nonspecific illnesses characterized by pain, tenderness, and stiffness of joints, capsules, and adjacent structures. Focal ‘trigger points’ may be identified. Systematic symptoms such as fatigue, insomnia and depression may be present.” As for “myofacial” pain, or myofasciitis, a simpler description is provided: “Inflammation of a muscle and its fascia.” See Respondents’ Exhibit 1. These terms, which presumably offer the most accurate description of the claimant’s ailments, are conditions that appear to affect the entire body, rather than a specific organ. They do not lend themselves to the same type of description as a traumatic injury to the leg, back, head, or elbow. Of course, an employer receiving this notice would initially be unable to tell what sort of physical trauma the claimant experienced to evoke this illness—at least, not without investigating her job duties, and whether she exhibited (or mentioned) any symptoms of discomfort at work, which brings us to the very purpose of § 31-294c: to spark such an investigation.

We believe that the term “fibromyalgia” provides enough of a description to allow such an inquiry. In the past, we have stated that a claimant’s obligation to state “the nature of [her] injury” under § 31-294c(a) requires only a general description of the injury rather than a specific medical diagnosis. Pagan, supra, 40-41; Ebrech v. Cadbury Schweppes, Inc., 6 Conn. Workers’ Comp. Rev. Op. 120, 121, 687 CRD-7-88-1 (March 2, 1989). This does not mean, however, that a claimant is mistaken if she provides a more technical description of the injury, such as the scientific name of her illness. Rather, § 31-294c(a) gives a claimant a bit of leeway in characterizing the nature of her injury, which is completely consistent with the remedial purpose of the Workers’ Compensation Act—a statute that attempts to create a forum accessible to everyone, including laymen without legal representation.

Here, the claimant’s description of her condition as fibromyalgia due to repetitive workplace trauma is precise enough to state a cognizable workers’ compensation claim. As noted above, this ailment generally afflicts more than one body part. The employer was thus required to file a disclaimer under § 31-294c(b). Despite the respondent’s complaints of vagueness in the Form 30C, no explanation was given as to why this alleged defect prevented an investigation of this claim. This board will not resuscitate the rule of “strict compliance” by acquiescing to a portrayal of the term “fibromyalgia” as a meaningless generalization that offered the respondent insufficient guidance to fulfill its statutory obligations.

The trial commissioner’s decision is hereby affirmed.

Commissioner Stephen B. Delaney concurs.

JESSE M. FRANKL, COMMISSIONER, DISSENTING. As the medical dictionary explains, fibromyalgia is a systemic illness that is not limited to one body part, or one particular symptom, for that matter. Much like arthritis, this condition can manifest itself in many ways, with varying degrees of severity. In order for an employer to investigate the cause of an employee’s alleged fibromyalgia, information beyond the disease diagnosis itself would be necessary. The claimant would need to include some sort of explanation as to the type of repetitive trauma that led to this affliction, or (if possible) a more specific description of the body parts currently affected by this illness. I do not believe that the Supreme Court’s repudiation of the “strict compliance” doctrine in Pereira v. State, 228 Conn. 535, 542-43 n.8 (1994), was intended to relax the notice requirement to the point where the respondent need be given little more than the name of the employee claiming injury, and the last date of her employment, in order to trigger the 28-day disclaimer requirement of § 31-294c(b). A Motion to Preclude that is granted is a final decision as to the employer. Therefore, I would deny the instant Motion to Preclude, and require the claimant to prove the compensability of her case on the merits.

1 The claimant’s Form 30C, being an official form promulgated by this Commission, contained the warnings required by § 31-294c(b) concerning the legal presumption of compensability should the employer fail to contest liability within 28 calendar days from its receipt of the claim. BACK TO TEXT

2 De minimis non curat lex. Black’s Law Dictionary defines this phrase as, “The law does not care for, or take notice of, very small or trifling matters.” BACK TO TEXT

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