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Kuehl v. Z-Loda Systems Engineering, Inc.

CASE NO. 4172 CRB-7-00-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 12, 2001

SYLVIA N. KUEHL, Dependent widow of GUENTHER KUEHL (Deceased)

CLAIMANT-APPELLANT

v.

Z-LODA SYSTEMS ENGINEERING, INC.

EMPLOYER

and

TRAVELERS INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert A. Slavitt, Esq., Slavitt, Connery & Vardamis, 618 West Avenue, Norwalk, CT 06850.

The respondents were represented by Kristie L. Diresta, Esq., Sizemore Law Offices, Crossroads Corporate Park, 6 Devine Street/First Floor, North Haven, CT 06473.

This Petition for Review from the January 11, 2000 Finding of the Commissioner acting for the Seventh District was heard January 12, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant (Sylvia Kuehl, Dependent Widow) has petitioned for review from the January 11, 2000 Finding of the Commissioner acting for the Seventh District. In that decision, the trial commissioner concluded that the claimant failed to file a timely Notice of Claim as required by § 31-294c and thus denied her request for widow’s benefits under § 31-306. In support of her appeal, the claimant contends that although she did not file a Notice of Claim, the respondents had knowledge of her husband’s death and her potential claim for widow’s benefits as evidenced by pleadings in a third party law suit. We find no error, and affirm the commissioner’s decision.

The trial commissioner made findings of fact and also incorporated the parties’ joint stipulated facts and exhibits. The claimant in this matter is the widow of the decedent Geunther Kuehl, who died on November 14, 1992 as a result of injuries sustained in an automobile accident which occurred on June 26, 1991, which he claimed occurred in the course of his employment. Notice of Claim for his injuries was properly filed on December 16, 1991, and was denied by the respondents on January 21, 1992. His claim has not been resolved in the workers’ compensation forum. However, Geunther Kuehl’s estate pursued a third party action against the tort feasor, in which the respondents intervened, which was resolved in 1997. The claimant widow has never filed a Notice of Claim seeking § 31-306 benefits; however, she claimed that legally sufficient notice of her claim was provided based upon the Amended Complaint filed in the Superior Court action and the Motion to Intervene filed in said lawsuit by the respondents. The trial commissioner concluded that the claimant failed to provide sufficient notice under § 31-294c to support her claim for widow’s benefits under § 31-306.

The claimant acknowledges that she did not file a Notice of Claim for widow’s benefits within one year of her husband’s death, as required by § 31-294c(a). However, the claimant argues in her appeal that “within the statutory one year period, Z-Loda, had actual notice of the death and further acknowledged its obligation to pay the widow’s claim, rendering the filing of a written notice a mere formality and unnecessary....” (Claimant’s Brief, p. 6). Specifically, the claimant contends that “On or about June 3, 1993, and within one year of Guenther Kuehl’s death, Traveler’s, acting for Z-Loda, moved to intervene in the Third Party Action, simultaneously filing an Intervening Complaint. In both pleadings, respondent admitted that it had notice of the claim and that by virtue of the Workers’ Compensation Act it might be required to pay large sums to the Estate of Guenther Kuehl and/or the claimant as a result of the underlying loss.” (Claimant’s Brief, p. 6). Additionally, the claimant argues that there was no prejudice caused by the lack of formal notice, and that the trial commissioner failed to apply the “savings clause” of § 31-294c(c).

We will first address the claimant’s argument that the trial commissioner erroneously failed to apply the savings provision of § 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.

The above section specifically addresses a “defect or inaccuracy” in a “notice of claim” but does not address the lack of a formal notice of claim. See Schmidt v. O.K. Baking Co., 90 Conn. 217, 221 (1916). In Schmidt, supra, the Supreme Court explained that the original statutory provision (the Compensation Act of 1913, § 21), which required notice of injury within thirty days, included the provision “but no want, defect, or inaccuracy of such notice and claim shall be a bar... unless the employer shall show that he was ignorant of the injury and was prejudiced...” Schmidt, supra, at 221, citing § 21 of 1913 Compensation Act. The court in Schmidt, supra, construed “want of” to mean absence of notice. As the term “want of” has been removed by the legislature from the above quoted section, the remaining “defect or inaccuracy of notice of claim” does not include the lack of a notice of claim.1 Accordingly, we conclude that this provision does not apply in the instant case.

We will now address the claimant’s contention that the respondents had actual knowledge of the claim for widow’s benefits, and that such knowledge satisfies the notice requirement of § 31-294c. The stipulated facts include, “The Respondent carrier received actual notice of Mr. Kuehl’s death on or about May 1993, by way of receipt of an amended Complaint in the aforementioned third party action, in which Sylvia Kuehl was substituted as party plaintiff executrix of the Estate of G. Kuehl and in which she individually sought damages for loss of consortium.” Stipulated Facts ¶ 15. The stipulated facts also include the fact that the claimant widow was the Secretary/Treasurer of Z-Loda Systems, Inc., managing the company from on or about October 1, 1991 forward. Stipulated Facts ¶ 17. Thus, the respondent employer “received actual notice of Mr. Kuehl’s death on November 14, 1992.” Stipulated Facts ¶ 14.

The trial commissioner concluded that the claimant widow failed to file a proper Notice of Claim within the requirements of § 31-294c(a) C.G.S. Section 31-294c(a) C.G.S. states in relevant part:

No proceedings for compensation under the provisions of this chapter 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, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. 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. Sec. 31-294c(a) (emphasis added).

Compensation itself is payable under § 31-306(a) C.G.S., 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.”

Section 31-294c C.G.S. requires that a Notice of Claim be filed within one year from the date of an accidental injury. We recognize that “a notice of claim or the satisfaction of one of the statutory exceptions is a prerequisite that conditions whether the [workers’ compensation] commission has subject matter jurisdiction under the act.” Keegan v. Aetna Life & Casualty Ins. Co., 42 Conn. App. 803, 806 (1996), cert denied, 239 Conn. 942 (1996). Our Appellate Court has explained that the purpose of § 31-294 (now § 31-294c) “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) (emphasis in original), quoting Rehtarchik v. Hoyt-Messinger Corp., 118 Conn. 315, 317 (1934); see also Funaioli v. New London, 52 Conn. App. 194, 198 (1999).

Recently, in Tardy v. Abington Constructors, 4105 CRB-2-99-8 (Oct. 30, 2000), this board addressed the issue of “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.” Id. The board concluded that “the requirement of separate notice for § 31-306 claims is derived from a fairly well-settled interpretation of the Connecticut Workers’ Compensation Act.” Id.

The board explained, “About three-quarters of a century has elapsed since our Supreme Court confirmed in Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701 (1926)] 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.” Tardy, supra, citing Biederzycki, supra, at 704, (emphasis added). The board further opined: “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.” Tardy, supra.

Regarding the issue in the present case of whether the widow claimant was required to file a separate notice for widow’s benefits, the following discussion in Tardy, supra, is instructive:

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).
Tardy, supra, (emphasis added).

We find the above analysis to be controlling in the instant case, and thus conclude that the claimant was required to satisfy the notice requirements of § 31-294c regarding her claim for widow’s benefits following the death of her husband. We must next address the claimant’s contention that the respondents’ “actual knowledge” or alleged “imputed knowledge” of her potential entitlement to widow’s benefits satisfied the legal requirements for notice under § 31-294c. To the contrary, we have repeatedly held that merely reporting to an employer that an injury has occurred is not sufficient to satisfy the notice of claim requirement of § 31-294c. Altamura v. Altamura Landscaping, 15 Conn. Workers’ Comp. Rev. Op. 427, 2170 CRB-7-94-10 (Sept. 3, 1996); Gaffney v. Stamford, 15 Conn. Workers’ Comp. Rev. Op. 257, 2219 CRB-7-94-11 (May 24, 1996); Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 1713 CRB-4-93-4 (April 17, 1995).

In Altamura, supra, the claimant had forwarded reports of medical care and bills to the respondent insurance company, but had not filed a Form 30C (Notice of Claim) with either this Commission or his employer. The board held that the commissioner reasonably concluded that § 31-294c was not substantially complied with. Furthermore, a Motion for Reconsideration was filed by the claimant contending that the board failed to consider the claimant’s argument that the insurer had set up a claim file at least one day prior to the date the statute of limitations expired. The board explained, “The fact that the insurer may have set up a file containing a claim number and date of injury for the claimant does not, in and of itself, establish sufficient notice under § 31-294c.” Altamura v. Altamura Landscaping, 15 Conn. Workers’ Comp. Rev. Op. 427, 2170 CRB-7-94-10 (Sept. 3, 1996).

In Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 1713 CRB-4-93-4 (April 17, 1995), the claimant followed police procedure in reporting his injuries to his employer, which consisted of filling out accident and personal injury reports signed by his superior officer and directed to Board of Police Commissioners. However, a Notice of Claim was not filed with Workers’ Compensation Commission until almost five years later. The board held that the claimant did not give a timely Notice of Claim either to his employer or to this commission by simply reporting his injury to the police department, and thus the commission had no jurisdiction over the claim.

In the instant case, it was a question of fact for the trial commissioner as to whether the respondents’ knowledge of the claimant’s husband’s death, as set forth in the stipulated facts, satisfied the statutory requirement of a written notice of claim. See Funaioli, supra, at 197 (“the determination of whether a form 15 taken together with [the claimant’s attorney’s] letter met the notice requirements is ultimately a question of fact.”). It was reasonable for the trial commissioner to conclude that the pleadings in the third party case did not satisfy the statutory requirements of § 31-294c. Specifically, the respondent employer in its Motion to Intervene dated June 9, 1993 acknowledged that under the Workers’ Compensation Act it “may become obligated to pay large sums to the estate of Guenther Kuehl and/or to the plaintiff, Sylvia Kuehl.” (Joint Exhibit D). It was within the discretion of the trial commissioner, as the trier of fact, to conclude that this pleading did not meet the requirements of notice under § 31-294c, as the phrase “may become obligated” may reasonably be read to mean that the obligation to pay widow’s benefits could occur if the claimant made a proper claim for widow’s benefits under the Workers’ Compensation Act.

Finally, we must address the claimant’s contention that the claimant widow’s knowledge of her husband’s death and potential widow’s claim for benefits should be imputed to the respondent employer and also to the respondent insurer on the basis that the claimant widow was an officer of the corporation and managed the business of the respondent employer. (Claimant’s Brief, p. 13). In support of this contention, the claimant cites Moreno v. Las Cruces Glass & Mirror Co., 818 P.2d 1217 (N.M.App. 1991) and Thompson v. Industrial Commission of Arizona, 772 P.2d 1116 (Ariz. 1989). In Moreno, supra, the court acknowledged “that other jurisdictions have held that where an employer is also acting in a dual capacity as employee, the actual knowledge exception to notice is not satisfied by notice to oneself.” Id. at 1219 (citations omitted). Significantly, the court explained that “the basis for these decisions is that the primary reason for requiring notice is to allow an employer and its insurer to protect themselves against fictitious or false claims for workers’ compensation.” Id. Moreover, in Moreno, supra, the court was interpreting a statute which allowed “actual knowledge of the accident” as an alternative for proper written notice. Id. at 1218. Thus, this case is distinguishable from the matter at hand, as § 31-294c does not provide such an exception. The Thompson, supra, case is also distinguishable, as in that case the claimant filed timely written notice of his injury within one year, but at issue was whether he also met another statutory notice requirement— notifying the employer of the injury “forthwith.” Id. at 1118.

We find no basis for adopting the claimant’s argument that knowledge of the claimant’s widow’s claim should be imputed to the respondent employer and also to the respondent insurer on the basis that the claimant widow was an officer of the corporation and managed the business of the respondent employer. Certainly, such a ruling would lead to bizarre results, as such a claimant would arguably be exempt from the notice requirements of § 31-294c. Additionally, we note that in Altamura, supra, the claimant was a partner in the respondent employer’s business along with his brothers, and notwithstanding his status as partner, he was held to the same standard as any other employee regarding the need to file proper notice under § 31-294c.

The trial commissioner’s decision is hereby affirmed.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 Rather, the first portion of § 31-294c(c) directly addresses the failure to file a notice of claim, and provides several alternatives to filing a notice of claim, such as a timely written request for a hearing or the provision of medical care by the employer. BACK TO TEXT

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