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Rourke v. Summit Tree Service, L.L.C.

CASE NO. 4297 CRB-8-00-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 22, 2001

DAVID M. ROURKE

CLAIMANT-APPELLEE

v.

SUMMIT TREE SERVICE, L.L.C.

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Walter D. Hussey, Esq., 142 Jefferson Street, Hartford, CT 06106.

The respondents were represented by David Kelly, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The Second Injury Fund was not represented at oral argument. Notice sent to Yinxia Long, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the September 7, 2000 Finding and Award Re: Motion to Preclude of the Commissioner acting for the Eighth District was heard April 27, 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 uninsured respondent, Summit Tree Service, L.L.C., has petitioned for review from the September 7, 2000 Finding and Award Re: Motion to Preclude of the Commissioner acting for the Eighth District. The respondent argues that the trier erred by granting the claimant’s Motion to Preclude pursuant to § 31-294c C.G.S. We disagree with the appellant’s contentions, and affirm the decision of the trial commissioner.

The claimant filed a Form 30C alleging that he suffered a back injury on January 7, 2000 while lifting logs during the course of his employment. Though signed by the claimant, the form was physically sent by the claimant’s attending physician, Dr. McKinney, via certified mail on January 24, 2000. It was received by the respondent’s principal, John Schoendorf, at his Glastonbury home four days later. Afterward, the respondent did not file a Form 43 or its equivalent disclaiming liability for the injury. Counsel explained at oral argument that Schoendorf did not immediately open the certified letter, having mistaken it for a bill due to the presence of Dr. McKinney’s return address on the envelope. The claimant then moved to preclude the respondent from contesting compensability. The Form 30C lists the employer as “Summit Tree Service,” while Glastonbury town records list the employer’s official name as “Summitt Tree Service, L.L.C., d/b/a Summitt Tree Service,” and its business address as a post office box in town. See Claimant’s Exhibit D. The trier found that, despite minor discrepancies in the Notice of Claim regarding the employer’s name and address, the claimant substantially complied with the notice provisions of § 31-294c as per Pereira v. State, 228 Conn. 535, 542-43 n.8 (1994). He therefore granted the Motion to Preclude, from which decision the respondent now appeals.

The operative statute governing this case is § 31-294c C.G.S., which provides, in relevant part, as follows:

(a) 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 . . . which caused the personal injury . . . . 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.
(b) 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. . . . [A]n employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death.”

At one time, this board required a claimant’s Form 30C to be virtually flawless in order for it to successfully support a Motion to Preclude a respondent from contesting the compensability of an injury under § 31-294c(b). Minor inaccuracies in names and dates of injury were deemed presumptively prejudicial to a respondent’s ability to contest liability. Tardy v. Abington Constructors, Inc., 4105 CRB-2-99-8 (October 30, 2000), citing 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, 665 CRD-1-87 (April 6, 1988). Our Supreme Court has since made it clear that this rule of “strict compliance” is unsupported by the language and legislative history of § 31-294c, and that the conclusive presumption was enacted to “require a prompt and thorough investigation of the employee’s claim so as to yield a specific disclaimer of liability and to avoid unnecessary delay in the adjudication of workers’ claims.” Pereira, supra.

Now, the proper question for a commissioner to ask when entertaining a Motion to Preclude is whether the notice of claim is sufficient to allow the employer or insurer to make a timely investigation of the claim. If so, the employer’s obligation to file a disclaimer is triggered. Pereira, supra; Dubois v. General Dynamics Corp., 222 Conn. 62, 67 (1992). Though the Court’s discussion of this “substantial compliance” standard was initially enunciated as dicta, it has both been adopted by the Appellate Court and reaffirmed by the Supreme Court as part of the merits of pending decisions. Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 612 (2000); Chase v. State, 45 Conn. App. 499, 503-504 (1997). Thus, it is that approach which this board now takes in reviewing decisions on motions to preclude. As long as an employer’s ability to investigate the claim is not prejudiced by the defect or defects in the notice, preclusion must lie if the respondent fails to timely contest the claim. See, e.g., Tardy, supra; Cifarelli v. Pitney Bowes, Inc., 3994 CRB-8-99-3 (March 8, 2000); Storey v. Hendel Petroleum Co., 3581 CRB-1-97-4 (June 10, 1998).

Here, the defects in the claimant’s Form 30C were minimal, and should not have had any impact on the employer’s ability to investigate the claim. In a one-man operation such as the respondent’s business, the distinction between “Summit Tree Service” and “Summitt Tree Service, L.L.C.” is so minor that it is unlikely Schoendorf would have even noticed the distinction had he opened the claimant’s notice upon receiving it. In Chase, supra, the claimant sent his notice of claim to the “Department of Motor Vehicles” rather than to the “State of Connecticut, Department of Motor Vehicles.” Relying on a similar incident in Pereira, supra, the Appellate Court held that this omission was not legally significant. Chase, supra, 504-505. The alleged error here is even more subtle, and has no legal consequence.

One might surmise that it was irregular under § 31-321 C.G.S. to send the Form 30C to Schoendorf’s home rather than to the Glastonbury post office box reserved for “Summitt Tree Service, L.L.C.” Though no law, regulation or practice forbids it, one would also not have expected the notice to arrive in an envelope featuring Dr. McKinney’s return address. However, neither of these facts prevents this notice from substantially satisfying the requirements of § 31-294c(a). By delivering a certified letter to Schoendorf personally via certified mail, the individual most qualified to respond to this claim was clearly notified. One would not normally anticipate that a certified letter would remain unopened by its recipient for over four weeks simply because the return address on the envelope was unfamiliar. In Chase, the Appellate Court stated that the defendant could have made a timely investigation of the claim because notice went to the same place that it would have had it been addressed more formally. Here, the Form 30C went directly to Schoendorf, who would also have been the one to receive it had it been sent to the post office box. Accordingly, we find no defect or irregularity in the notice that would prevent preclusion from lying under § 31-294c(b).

In its Reasons for Appeal, the respondent also contends that Admin. Reg. § 31-297(b)-1 1 required the claimant to file a motion with attachments prior to the formal hearing, which was not done here, and that the exhibits attached to the Motion to Preclude are insufficient to establish the requirements for the granting of such a motion. There were two formal hearings in this matter: August 4, 2000, and August 17, 2000. The claimant’s August 11, 2000 Motion to Preclude was filed on August 14, 2000, along with a supporting Memorandum of Law. The respondents’ objection is dated August 17, 2000. There is no dispute in these documents as to the contents of the Form 30C and the manner in which it was delivered. The parties’ arguments were readily apparent. We do not believe that the absence of an attachment featuring a signed “green card” from the Post Office was problematic under these circumstances, especially since this item was admitted into evidence at the August 17, 2000 formal hearing. Claimant’s Exhibit C. Indeed, the record also contains the envelope in which the Form 30C was mailed, as well as the Form 30C itself. Respondent’s Exhibit 1; Claimant’s Exhibit B. We thus find no error in the trier’s implicit choice to waive any additional filings or formal proceedings, as was his right under Admin. Reg. § 31-297(b)-1.

The trial commissioner’s decision is hereby affirmed. Insofar as any benefits due the claimant may have remained unpaid pending appeal, interest is awarded pursuant to § 31-301c(b).

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

1 Admin. Reg. § 31-297(b)-1 states, “Whenever a party files a Motion to Preclude presentation of defenses, alleging rights under § 31-297(b) C.G.S. [now § 31-294c(b)], the movant shall support such filing by such documents as are appropriate, including but not limited to affidavits, copies of notices with return receipt indicating date of service and written admissions. The movant shall also file a memorandum of law in support of such motion. The adverse party prior to the date set for hearing on such motion shall file opposing affidavits and any further documentation and memoranda of law. All such motions and accompanying filings and memoranda shall be filed and served on all parties. Upon good cause shown the Commissioner may waive any of these requirements.” BACK TO TEXT

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