State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Tardy v. Abington Constructors, Inc.

CASE NO. 4105 CRB-02-99-08

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 30, 2000

BARBARA TARDY, Dependent widow of MICHAEL L. TARDY (Deceased)

CLAIMANT-APPELLEE

v.

ABINGTON CONSTRUCTORS, INC.

EMPLOYER

and

ARGONAUT INSURANCE CO./THOMAS J. FAY INS. ADJUSTERS

INSURER/ADMINISTRATOR

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Amy Stone, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.

The respondents were represented by Robert D. McGann, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the August 12, 1999 Ruling on Claimant’s Motion to Preclude by the Commissioner acting for the Second District was heard April 14, 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 respondents have petitioned for review from the August 12, 1999 Ruling on Claimant’s Motion to Preclude by the Commissioner acting for the Second District. They contend on appeal that the trial commissioner erroneously prevented them from contesting the compensability of the decedent’s death. We find no error, and affirm the commissioner’s decision.

The claimant in this matter is the widow of the decedent Michael Tardy, who died on August 24, 1998 in South Portland, Maine. On September 17, 1991, the decedent had suffered a compensable traumatic brain injury and a parasymphysis mandibular fracture, as indicated by the voluntary agreement approved on December 13, 1991. Claimant’s Exhibit K. A Form 30C was then filed on February 21, 1992, listing his injuries as “bruised heart, fractured skull/brain damage—jaw—teeth and right leg—on ladder machine, hit on head, fell to ground.” The respondents do not appear to have contested that claim, and they paid the decedent temporary total disability benefits from the date of his initial incapacity forward. On August 31, 1998, the respondents filed a Form 36 seeking to discontinue those benefits with the explanation that Tardy’s death one week earlier had been caused by a heart attack that was not related to his compensable injury.

The trier found that the claimant’s counsel sent a letter to the Second District office dated September 1, 1998, a copy of which was mailed to the Argonaut Insurance Co., the insurer for the respondent-employer. In that letter, counsel acknowledged that total disability benefits should be terminated. However, she added that “it appears that the work-related injury and its sequelae were substantial factors in causing the heart attack. Accordingly, I will be filing a Notice of Claim for widow’s benefits in the near future.” Claimant’s Exhibit F. This notice of claim was filed on October 13, 1998, and described the compensable event as “death due to heart ailment caused by sequela of work-related injury.” Under “Injured Worker Information,” it listed “Michael Tardy, Deceased,” and “Barbara Tardy, Widow,” and it includes both the date of injury and date of death under “Injury Information.” Though a copy was served on both this Commission and the employer, Abington Constructors, Inc., in accordance with § 31-294c(a)1, a separate copy was not served on Argonaut Insurance or its administrator, the respondent Thomas J. Fay Ins. Adjusters.

On October 21, 1998, a representative of the employer’s Human Resources Department informed an adjuster at Argonaut Insurance that she had received a letter of representation from the claimant’s counsel. The adjuster did not request copies of the documents that the employer had received, nor did she contact the claimant or this agency for more information about the documents filed by the claimant’s counsel. Findings, ¶¶ 10-13; Claimant’s Exhibit M. The twenty-eighth day following the employer’s receipt of the Form 30C came to pass without the respondents having filed a Form 43 Notice of Intention to Contest Liability to Pay Compensation pursuant to § 31-294c(b)2. The claimant subsequently filed a November 19, 1998 Motion to Preclude the respondents from contesting liability.

In a separate memorandum of law that she attached to her factual findings, the trial commissioner reasoned that the claimant had properly filed a new Form 30C for her claim for dependent death benefits, which the respondents were obliged to contest. The omission of the place of death on the Form 30C was not material under § 31-294(a), as neither the statute nor the form promulgated by this Commission indicates that such information should be provided along with the date and site of injury. Because no Form 43 was filed, and the previously filed Form 36 did not contain sufficiently specific language to constitute an adequate notice of contest under § 31-294c(b), the trier concluded that the respondents were now precluded from contesting liability for the claimant’s requested benefits. The respondents have filed an appeal from that decision, along with the denial of their Motion to Correct.

Our analysis begins with the first issue addressed in the appellants’ brief: whether, even though the decedent’s original injury had been accepted as compensable, the claimant had to file a subsequent notice of claim for § 31-306 benefits, thereby obliging the employer/insurer to reply by filing a timely disclaimer. The respondents portray the existing caselaw as supportive of the idea that the decedent’s death implicated only the extent of disability arising from his work injury, rather than forming the basis for a new compensation claim. See Adzima v. UAC/Norden Division, 177 Conn. 107 (1979); Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701 (1926). The claimant describes the respondents’ reliance on these and other Supreme Court cases as misplaced, and cites the enactment of P.A. 98-104 as proof that the legislature intended to continue the long-standing requirement of separate notice. We concur with the claimant’s analysis, as the requirement of separate notice for § 31-306 claims is derived from a fairly well-settled interpretation of the Connecticut Workers’ Compensation Act.

About three-quarters of a century has elapsed since our Supreme Court confirmed in Biederzycki, supra, that the classes of compensation awarded to an employee and his dependents are independent of one another, yet still arise out of the same compensable injury. Id., 704. The Court explained, “The facts found in the finding and award in favor of the employee, must be accepted as facts finally found in the claim for compensation by the dependent on account of the death of the employee. All that the dependent must prove are, the employee’s death, the dependence, and the causal connection between the injury for which the employee was awarded . . . compensation, and the death.” Id., 705. Since then, there have been no legal developments that would tend to inhibit the logical outgrowths of this observation. Where related issues have arisen, the distinction drawn in Biederzycki has retained its integrity: a dependent’s claim incorporates the already-settled facts of the decedent’s original injury claim, while adding further factual prerequisites that must be met in order to establish entitlement to benefits.

In cases involving claims for survivor’s benefits under § 31-306 following the death of an employee who had sustained a previously accepted compensable injury, this board has consistently held that there is a difference under § 31-294c between the claims of workers and their dependents when calculating the applicable limitations periods for filing notices of claim. See, e.g., York v. General Dynamics, 13 Conn. Workers’ Comp. Rev. Op. 166, 1770 CRB-2-93-6 (March 9, 1995); Freeman v. Hull Dye & Print, 12 Conn. Workers’ Comp. Rev. Op. 259, 1516 CRB-5-92-9 (June 2, 1994), rev’d on other grounds, 39 Conn. App. 717 (1995); Sellew v. Northeast Utilities, 12 Conn. Workers’ Comp. Rev. Op. 135, 1422 CRB-8-92-5 (April 7, 1994), appeal dismissed, A.C. 13541, 13542 (June 14, 1994). “These separate limitation periods . . . support the conclusion that a widow cannot rely on the claim filed by her deceased husband to satisfy the jurisdictional notice requirements of § 31-294.” Sellew, supra, 138. Not only are there additional factual elements necessary to the establishment of a § 31-306 claim; there is also the practical matter that such a claim does not vest until the date of death, rather than at the time of the work-related injury. Id. Although our Supreme Court has not had to rule specifically on the necessity of a separate notice of claim for dependent death benefits, its opinions have not shied away from the notion that a § 31-306 claim arises separately from the workers’ compensation claim that underlies it, while still maintaining an “inextricable link” to the underlying claim. See, e.g., Duni v. United Technologies Corp./Pratt & Whitney Aircraft Division, 239 Conn. 19, 25, 29 (1996).

Moreover, the language of P.A. 98-104—codified at § 31-306b—explicitly contemplates the necessity of a separate notice for § 31-306 benefit claims. As per § 31-306b(a), “Not later than thirty days after the date an employer or insurer discontinues paying weekly disability benefits to an injured employee . . . due to the death of the injured employee, the employer or insurer shall send . . . a written notice stating, in simple language, that dependents of the deceased employee may be eligible for death benefits under this chapter, subject to the filing and benefit eligibility requirements of this chapter.” (Emphasis added.) Subsection (c) adds that a respondent’s failure to comply with subsection (a) “shall not excuse a dependent of a deceased employee from making a claim for compensation within the time limits prescribed by subsection (a) of section 31-294c unless the dependent of the deceased employee demonstrates . . . that he was prejudiced by such failure to comply.” (Emphasis added.) These words strongly indicate that our lawmakers presumed § 31-294c to be applicable to claimants seeking survivor’s benefits under § 31-306, even where the underlying compensable injury has been accepted. Indeed, we would have to devise an exquisitely strained reading of § 31-306b to avoid such a conclusion. That would be plainly inappropriate, especially where reason and history both dictate that § 31-294c applies to this case.

Having established this precept, we cannot ignore any portion of the statutory language that is readily applicable to these facts. The law mandates not only that the claimant must file timely notice, but the employer must respond to that notice within 28 days if it wishes to contest liability for a claim. Nothing in the statute suggests that a claim for dependent death benefits is to be exempted from the latter obligation. We therefore conclude that the respondents’ insistence that a previously injured employee’s death should not be subject to the strictures of § 31-294c because it essentially involves only the “extent of disability;” see Adzima, supra, 112-13; rests on insufficient authority to overcome the connotations of § 31-306b and the substantial weight of past decisions. The trier correctly ruled that the notice provisions of § 31-294c, including those that deal with preclusion, are pertinent to this matter.

The next topic for analysis is the respondents’ assertion that the claimant’s Form 30C contained insufficient and misleading information, which prevented it as a matter of law from serving as the basis for a Motion to Preclude. The respondents contend that the absence of a place of death on the notice of claim impeded their inquest as to the circumstances of the decedent’s demise. They also posit that the presence of the decedent’s name and date of injury on the form, in addition to the name of the claimant and the date of the decedent’s death, undoubtedly led the employer’s representative to presume that the Form 30C concerned the continuation of an existing claim rather than the inception of a new action, thereby explaining—and excusing—the respondents’ failure to timely contest the claim. We do not find these arguments persuasive.

At one time, this board required a claimant’s Form 30C to be virtually flawless in order for it to form the basis for a Motion to Preclude. Minor inaccuracies in an employer’s name or the date of injury were viewed as presumptively prejudicial to a respondent’s ability to contest liability. See, e.g., Paul v. Perkin Elmer Corp., 7 Conn. Workers’ Comp. Rev. Op. 75, 684 CRD-7-88-1 (Sept. 5, 1989); Fuller v. Central Paving Co., 5 Conn. Workers’ Comp. Rev. Op. 92, 655 CRD-1-87 (April 6, 1988). When confronted with this policy, however, our Supreme Court found no support for such a rigorous standard in either § 31-294c (formerly § 31-297(b)) or its legislative history, particularly given the humanitarian and remedial purpose behind the Act itself. “[The statute] was enacted to require a prompt and thorough investigation of the employee’s claim so as to yield a specific disclaimer of liability and avoid unnecessary delay in the adjudication of workers’ claims. As a result, if the notice of claim is sufficient to allow the employer to make a timely investigation of the claim, it triggers the employer’s obligation to file a disclaimer.” Pereira v. State, 228 Conn. 535, 542-43 n. 8 (1994).

Since the Pereira ruling, this board has held that minor defects in a notice will be overlooked when evaluating a Motion to Preclude, as long as a respondent is not prejudiced in its ability to investigate. We have adopted the Supreme Court’s standard of “substantial compliance” not only with respect to notices of claim, but also notices of intent to contest liability that have been responsively filed. See, e.g., Dubious v. General Dynamics Corp., 222 Conn. 62 (1992); Cifarelli v. Pitney Bowes, Inc., 3994 CRB-8-99-3 (March 8, 2000); Walter v. State of Connecticut/Services for the Blind, 14 Conn. Workers’ Comp. Rev. Op. 107, 1694 CRB-2-93-4 (June 2, 1995). Despite this more relaxed approach, the employer’s burden to respond in a timely and meaningful fashion to a Form 30C is still very real. A substantively deficient notice of disclaimer is still presumed to operate prejudicially against a claimant, even though no actual harm may come from the delay. Menzies v. Fisher, 165 Conn. 338, 346-47 (1973). “It is . . . of no help to say that the claimant, faced with a general denial of compensability, should ask the employer for a more specific statement or that she must demonstrate some prejudice or surprise to herself. Arguments of this nature overlook the fact that the proceedings were designed to facilitate a speedy, efficient and inexpensive disposition and to reduce the necessity of legal counsel for the claimant.” Id., 346.

In effectuating this purpose, it would make little sense for us to resume citing minor irregularities in a Notice of Claim as grounds for absolving a respondent from failing to file a Form 43. A claim process that strives to be simple and accessible to the laity could not attach mandatory punitive consequences to subtle errors in procedure without promoting greater systemic complexity, thereby undermining its own aims. This case illustrates that proposition well. The standard Form 30C provided by this Commission was clearly designed with the claim of the injured worker in mind, rather than the claim of a surviving dependent. It does not contain specific instructions regarding § 31-306 death claims, nor does it expressly provide space to list the date and place of death. It also instructs the preparer to insert the name of the injured worker and the date and location of his injury. A claimant who attempts to comply with the Act by completing the notice forms provided by this Commission should not be penalized because said forms do not instruct the preparer to either include or omit certain information. Collins v. West Haven, 210 Conn. 423, 431 (1989); Walter, supra, 111. As in any case involving preclusion, the essential question remains this: from the notice of claim itself, could the employer make a timely investigation of the claimant’s assertion of entitlement to survivor’s benefits? Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 612 (2000); Chase v. State, 45 Conn. App. 499, 508 (1997).

Here, it appears that the claimant’s counsel not only satisfied the requirements of the Form 30C; she also went beyond its limitations by creating space for additional crucial information that is mentioned in the text of § 31-294c. From this claim form, one can determine the name of the deceased employee and the date of, place of, and body parts affected by his original injury. One can then determine the date of his death, the alleged cause of death (“sequela of work-related injury”), and the name and address of the surviving widow, as well as her counsel. Claimant’s Exhibit A. The absence of a separately listed place of death—which in fact happens to be the address of the widow—would not prevent most employers receiving this notice from being able to commence an investigation of the circumstances of the decedent’s demise. As for the allegedly misleading “extraneous” information, we are of the opinion that the respondent would be worse off if the notice omitted the name of the decedent and his date and place of injury, rather than including such information as directed by the Form 30C itself. We therefore dismiss the respondents’ arguments that the claimant’s notice was insufficient to support a Motion to Preclude under § 31-294c.

Notwithstanding our conclusions regarding the legitimacy of the Motion to Preclude, the respondents still maintain that it should not have been granted for two reasons. First, they complain that the claimant’s attorney was “blatantly” guilty of “fishing for preclusion” by withholding the fact that she had filed a Form 30C on the claimant’s behalf from Amy Lamson, the Argonaut Insurance claims adjuster who was apparently responsible for supervising this case, in written communication between the two. Brief, p. 15-18. The claimant’s attorney strenuously objects to this allegation. She observes that notice was served upon the proper parties in accordance with § 31-294(a) and § 31-321 C.G.S., and that there is no requirement that a “courtesy copy” be served upon the insurer under the Act. The trial commissioner found likewise. Counsel also notes that this line of defense is not only irrelevant, but speculative, as no testimony was presented to establish that the insurer’s representatives misapprehended the nature of the Form 30C received by the employer.

After considering these arguments, we perceive no convincing basis upon which one could find that the claimant’s attorney conducted herself in a manner that was subjectively designed to mislead the respondent insurer. The terse letter that counsel sent to Lamson on October 16, 1998 appears to be directly responsive to a letter sent by Lamson on October 12, 1998. Claimant’s Exhibit G. In the context of their exchange, counsel’s failure to mention that she had filed a Form 30C on October 13, 1998, does not strike the reader as an unnatural or calculated omission. There is nothing in counsel’s letter that connotes the nonexistence of a widow’s claim, and the fact that some of the medical evidence regarding causal relationship was still pending at the time did not make it unjust to expect the respondents to file a disclaimer in response to the Form 30C. We also observe that counsel sent the insurer a letter on September 1, 1998, in response to the granting of the Form 36, stating that a notice of claim for widow’s benefits would soon be filed. As the commissioner noted, the Form 30C was subsequently sent to the proper parties under the statute. We need not explore this topic any further.

The respondents’ other objection concerns the effect of the Form 36 that they filed on August 31, 1998. In their view, this document was the legal and practical equivalent of a Form 43 Notice of Intention to Contest Liability, at least for the purposes of defeating a Motion to Preclude. The claimant protests that, unlike a notice of claim, which need not take any specific form as long as it contains enough information to allow an employer to investigate the claim, a contest notice must comport with a form prescribed by this Commission as per § 31-294c(b), i.e., the Form 43. She then distinguishes the purpose of a Form 36—to notify of intention to discontinue benefits in an accepted claim—from the purpose of a Form 43, which is to dispute initial liability.

Under the circumstances here, the trier properly ruled that the respondents’ Form 36 did not doubly function as a notice of intent to contest liability under § 31-294c(b). In the workers’ compensation arena, it is commonly understood that a Form 36 does exactly what its language purports to do—discontinue or reduce compensation that is currently being paid on account of an accepted claim. Although it may have been filed in direct response to the decedent’s death, the Form 36 in question was nonetheless submitted in order to stop the payment of total disability benefits to the decedent, rather than to contest a potential claim by his widow for survivor’s benefits. This point is vital to our analysis.

Based on terminology alone, the statement, “Employee died on 9-24-98 as a result of a non-work related heart attack,” probably contains enough information to minimally satisfy the requirement of Menzies, supra, that a disclaimer reveal specific substantive grounds for contest. See Tovish v. Gerber Electronics, 19 Conn. App. 273, 276 (1989) (denial that heart attack arose out of and in course of employment adequately stated what was at issue). However, we must also consider the context of this statement in assessing its legal consequences. There is no direct link between this Form 36 and the subsequently-filed Form 30C, which presented a separate claim for benefits that explicitly demanded its own response under the terms of § 31-294c. As the statute requires, this Commission has promulgated a form for such responses: the Form 43. By filing such a form, or at least a substantial equivalent, the respondents would have done what was required to inform the claimant that her right to compensation under § 31-306 was being contested. This procedure was not followed. Instead, the respondents asked the trial commissioner to extrapolate a disclaimer to the claimant’s Form 30C from the wording of the Form 36, as if this provided the claimant with notice of their intention to contest liability in the same manner that a Form 43 would. Our caselaw does not support this result. Compare Elmassri v. Vinco, Inc., 5 Conn. Workers’ Comp. Rev. Op. 96, 584 CRD-7-87 (June 2, 1988) (where Form 43 disclaimer was filed before Form 30C, preclusion was not allowed). Accordingly, we find no error in the trier’s conclusion that the respondents’ Form 36 did not constitute a timely notice of their desire to contest liability.

The trial commissioner’s decision is hereby affirmed. Insofar as benefits already due may not have been paid to the claimant, interest must be added onto the award in accordance with § 31-301c(b) C.G.S.

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

1 Section 31-294c(a) (Rev. to 1998) states in relevant part that, “Notice of a claim for compensation may be given to the employer or any commissioner 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.” Compensation itself is payable under § 31-306(a) C.G.S. (Rev. to 1998), which requires the payment of benefits on account of death resulting from a compensable injury to “those wholly dependent upon the deceased employee at the time of his injury.” BACK TO TEXT

2 Section 31-294c(b) (Rev. to 1998) provides in relevant part, “Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the workers’ compensation commission stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested. The employer shall send a copy of the notice to the employee in accordance with section 31-321. If the employer or his legal representative fails to file the notice contesting liability on or before the twenty-eighth day after he has received the written notice of claim, the employer shall commence payment of compensation for such injury or death on or before the twenty-eighth day after he has received the written notice of claim, but the employer may contest the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim . . . .” BACK TO TEXT

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