State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Devito v. City of Stamford

CASE NO. 4062 CRB-07-99-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 27, 2000

STEPHEN F. DEVITO

CLAIMANT-APPELLANT

v.

CITY OF STAMFORD

EMPLOYER

and

CIRMA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Gwendolyn Field Noto, Esq., Casper & de Toledo, 1111 Summer Street, Stamford, CT 06905.

The respondents were represented by James Moran, Esq., Maher & Williams, 1300 Post Road, Fairfield, CT 06430-0550.

This Petition for Review from the June 14, 1999 Finding and Order of the Commissioner acting for the Seventh District was heard February 25, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 14, 1999 Finding and Order of the Commissioner acting for the Seventh District. In that decision the trial commissioner concluded that the claimant failed to provide timely notice pursuant to § 31-294c of his claim for a left knee injury on September 19, 1989. The trial commissioner found that the claimant’s Notice of Claim was insufficient as it provided an incorrect date of injury. In support of his appeal, the claimant contends that the incorrect date on the Notice of Claim constituted a curable defect under § 31-294c(c). Additionally, the claimant contends that the Notice of Claim, together with the incident report filed by the claimant which provided an accurate date of injury and description of the injury, constitutes sufficient notice under § 31-294c.

The trial commissioner found the following relevant facts. The claimant was employed as a captain of the Stamford Police Department. In 1980, the claimant had sustained a compensable injury to his left knee during an attempted rescue at an apartment fire, which was accepted as compensable by the respondents. The claimant had been a long-distance runner, and continued his running after the 1980 injury, usually running over twenty miles per week. The claimant experienced problems with his left foot, left leg, and left knee, but was provided with orthotics, and continued his running.

The claimant contends that on September 19, 1989, when he was entering his new police cruiser, his right foot slipped on oil, causing him to twist his left knee. The claimant testified that on September 19, 1989, he advised his supervisor regarding the incident, and filed an incident report in accordance with the policy of the Stamford Police Department. The incident report is dated September 19, 1989, and describes how the injury occurred:

…. While the undersigned was entering said vehicle, my right foot slipped on the matting, causing me to wrench my left knee and reinjure an old injury which was first reported some years ago during a fatal fire at 25 Washington Ct. No medical treatment was required. I will seek medical attention at a later time, if necessary, from my own private doctor. (Finding ¶ 7; Claimant’s Exh. H).

On August 7, 1990, the claimant, who was not assisted by counsel at that time, filed a Notice of Claim (Form 30C) with the Seventh District Workers’ Compensation Office. In this notice, the date of injury is listed as February 20, 1980. In addition, in describing the injury, the notice states: “Injury of unknown nature, causing knee pain in the left knee, which is constant and debilitating unless corrective orthotic supports are worn at ALL times.” (Finding ¶ 10; citing Claimant’s Exh. A). The trial commissioner found that this notice “on its face, does not meet the statutory requirement of § 31-294c so as to allow him to make a viable claim against the City of Stamford for an injury of September 19, 1989.” (Finding ¶ E). The trial commissioner further found that neither the incident report filed by the claimant on or about the date of the injury, nor his oral notification to his supervisor, satisfied the statutory notice requirements of § 31-294c.

In support of his appeal, the claimant contends that the incorrect date of injury on the Form 30C was a curable defect pursuant to § 31-294c(c), which provides in pertinent part:

No 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.

Here, the trial commissioner specifically determined that this statutory section was not applicable. (Finding ¶ F). We find no error.

Section 31-294c requires that a Notice of Claim be filed within one year from the date of an accidental injury. Section 31-294 (Rev. to 1989) (now § 31-294c) provides in pertinent part: “No proceedings for compensation . . . shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury. . . .” “The purpose of § 31-294, in particular, is to alert the employer to the fact that a person has sustained an injury that may be compensable, and that such person ‘is claiming or proposes to claim compensation under the Act.’” Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 303 (1993) (internal citation omitted), quoting Rehtarchik v. Hoyt-Messinger Corp., 118 Conn. 315, 317 (1934).

The claimant cites numerous cases in support of his contention that the erroneous date of injury on the Form 30C constituted a curable defect. None of those cases, however, involve a “defect” which is equivalent to the instant case, where the claimant’s Form 30C listed the date of injury as February 20, 1980 (the date of an accepted injury) rather than the actual alleged date of injury of September 18, 1989. The cases cited by the claimant include Roche v. Danbury Hospital, 3592 CRB-7-97-5 (July 13, 1998) (The trial commissioner found that the claimant was injured on or about March 26, 1993, in the manner represented by her in her testimony, although the exact date of injury could not be precisely ascertained); Bonin v. Thames Valley Steel, 1492 CRB-2-92-8 (Feb. 14, 1997), appeal dismissed for lack of final judgment, A.C. 16963 (5/28/97) (Where claimant was alleging either repetitive trauma or occupational disease, the five-day difference between the claimant’s last date of employment and the date of injury on his notice of claim was not likely to mislead the employer as to the nature of his alleged injury); Bell v. Dow Corning STI, Inc., 13 Conn. Workers’ Comp. Rev. Op. 109, 1777 CRB-4-93-7 (Jan. 31, 1995) (Date of injury on Notice of Claim was incorrect by six days); Troske v. Wolcott View Manor, 13 Conn. Workers’ Comp. Rev. Op. 323, 1687 CRB-5-93-4 (April 26, 1995) (Claimant could not remember specific date of her injury, the injury was reported to her supervisor when it happened, and claimant filed a timely Form 30C which listed month and date of injury).

The above cases are readily distinguishable from the case at hand. In the instant case it is reasonable to conclude that the employer was not provided with adequate notice of a claim for a 1989 injury by a Notice of Claim which listed the date of an accepted injury which had occurred nine years prior, and where the notice described the injury in an ambiguous manner as follows: “Injury of unknown nature, causing knee pain in the left knee, which is constant and debilitating unless corrective orthotic supports are worn at ALL times.” (Finding ¶ 10; citing Claimant’s Exh. A). Certainly, the instant case does not present a mere inaccuracy of a date, or a typographical error of some sort, which would be covered under the saving provision of § 31-294c(c), but rather presents a Notice of Claim for an injury which had already been accepted as compensable.

We next will consider the claimant’s argument that the claimant provided sufficient notice to meet the requirements of § 31-294c under the totality of the circumstances, including the incident report which was filed on the date of the injury and the claimant’s oral notification of his supervisor. In support of this argument, the claimant cites Funaioli v. New London, 52 Conn. App. 194 (1999). In that case, our Appellate Court held that a First Report of Injury form and an attorney’s letter, taken together, met the statutory requirement of a written notice of claim where the letter bore the heading “RE: Raymond Funaioli versus the City of New London, 7-433 claim, 3/27/87.” Funaioli, supra, at 196. The Court explained that this determination constituted a question of fact for the trial commissioner.

In the instant case, this question of fact was addressed by the trial commissioner. The findings of fact that he made support his conclusion that under the totality of the circumstances, the notice provided by the claimant did not constitute substantial compliance with the notice content requirements of § 31-294c. Specifically, the claimant’s incident report dated September 18, 1989 specifically states that “….No medical treatment was required. I will seek medical attention at a later time, if necessary, from my own private doctor.” The incident report does not in any manner indicate that the claimant intended to file a workers’ compensation claim for this injury. Furthermore, the claimant does not allege that he advised his supervisor on that date that he intended to pursue a workers’ compensation claim for said injury. Accordingly, we find no error in the trial commissioner’s conclusion that the employer was not provided with sufficient notice of the claimant’s claim of a 1989 knee injury, and thus that the claimant’s failure to file a timely Notice of Claim barred his claim for benefits.1 This determination was a factual finding (Funaioli, supra, at 197) and as it is supported by the record we may not disturb it. See Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The trial commissioner’s decision is affirmed.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

1 See Cislo v. Shelton, 16 Conn. Workers’ Comp. Rev. Op. 14, 2291 CRB-4-95-2 (Oct. 4, 1996) (letter to police chief stating that claimant was being treated for hypertension and that he should “take any steps necessary pursuant to this information” did not notify the department of a potential workers’ compensation claim); Gaffney v. Stamford, 15 Conn. Workers’ Comp. Rev. Op. 257, 2219 CRB-7-94-11 (May 24, 1996) (first report of injury is not a claim for compensation); Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 1713 CRB-4-93-4 (April 17, 1995) (a police officer who reported two back injuries to his employer and filled out accident reports did not do enough to toll the § 31-294 statute of nonclaim, as merely reporting an injury to one’s employer does not notify the employer that a workers’ compensation claim is being pursued). BACK TO TEXT

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