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Morgan v. Hot Tomato’s, Inc. DIP

CASE NO. 4377 CRB-3-01-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 30, 2002

BRIE MORGAN

CLAIMANT-APPELLEE

v.

HOT TOMATO’S, INC. DIP

EMPLOYER

and

ATLANTIC MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Lisa Kolb, Esq., Gillis & Gillis, Two Whitney Avenue, #502, New Haven, CT 06510.

The respondents were represented by James Sullivan, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.

This Petition for Review from the March 15, 2001 Finding of Granting of Motion to Preclude of the Commissioner acting for the Third District was heard September 14, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the March 15, 2001 Finding of Granting of Motion to Preclude of the Commissioner acting for the Third District. They contend that the trier erroneously found that the claimant sufficiently complied with the notice requirements of § 31-294(c) C.G.S. to invoke the remedy of preclusion. We affirm the trial commissioner’s ruling.

The claimant was employed as a bartender by the respondent Hot Tomato’s, Inc., on the evening of December 4, 1999, when she alleges that she hurt her left knee by banging it against a cooler. She immediately reported the injury to her supervisor. On February 29, 2000, she personally filed a Form 30C with the Third District Workers’ Compensation office, and mailed a certified letter containing a copy of her Form 30C to her employer, with the envelope addressed as follows: “Hot Tomatos, College St., New Haven 06511.” The words “Attn: Dan Kelley” also appear in the lower left-hand corner of the envelope. Claimant’s Exhibit A. Someone else later wrote the number “261” in front of the words “College St.,” as the claimant had not included the street number on the envelope. The postal service attempted to deliver the letter on March 6th, 16th, 20th, 25th, and April 4th, 2000, before it was returned to the claimant as unclaimed mail. The respondents did not file a Form 43 to contest the claim until June 12, 2000.

The claimant sought to have the respondent precluded from contesting liability for the injury pursuant to § 31-294c(b), which states, “an 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 . . . shall be conclusively presumed to have accepted the compensability of the alleged injury or death.” In this case, the Form 43 was not filed until over two months after the last attempted delivery of the claimant’s certified letter. The respondents argued in their defense that the letter was defective because the address was not correct, thereby preventing the claimant from invoking the remedy of preclusion.

Noting that “substantial evidence” indicates that the postal service attempted to obtain the signature of a Hot Tomato’s representative on five occasions, the trier concluded that these efforts constituted compliance with § 31-294c(a) on the part of the claimant. That subsection requires a claimant to give written notice of a compensation claim to the employer within one year of the date of her accident. Additionally, § 31-321 C.G.S. states that any notices required by the Workers’ Compensation Act shall be given, unless otherwise specified, “by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business.” Because the respondents did not file a Form 43 within 28 days of the attempted service of the Form 30C, which “properly described the claimant’s injury and date of injury while working for the Respondent,” the trier granted the claimant’s Motion to Preclude. The respondents have taken an appeal from that decision to this board.

In any case that proceeds under the Act, the individual charged with the responsibility and the authority to draw inferences concerning the credibility of evidence is the trial commissioner. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). That includes both the testimony of witnesses and documents submitted into evidence such as medical reports and, as in this case, envelopes containing notations related to their failed delivery. This board may not second-guess such inferences on review, as long as they have some basis in the supporting evidence. Barton v. Waterbury Company, 3786 CRB-5-98-3 (June 3, 1999); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Although it is a question of law rather than fact as to whether a notice of claim avers sufficient information to trigger an employer’s investigative responsibilities; Chase v. State, 45 Conn. App. 499, 508 (1997); Passarelli v. Norwalk, 3984 CRB-7-99-2 (March 22, 2000); there is no dispute that the claimant’s Form 30C was itself sufficient to confer meaningful notice of her injury. Instead, the debate in this case centers on the circumstances of an unsuccessful attempt at postal delivery of a certified letter, which allows for certain factual inferences to be drawn concerning the procedures that were followed, and the probable conduct of the parties.

Looking at the notations on the envelope in question here, the testimony of the claimant, and the testimony of Christopher Crampton, an assistant general manager at Hot Tomato’s, it was reasonable for the trial commissioner to infer that the claimant’s failure to include the street number of the restaurant on the envelope did not prevent the post office from actually attempting delivery to the restaurant on five separate occasions. Crampton testified that the restaurant opens at around noon on Saturdays, after the mail has already been delivered, but on Monday through Friday, a manager is present at the restaurant by 9:00 A.M., before the mail comes. February 5, 2001 Transcript, pp. 15-16. He also testified that he could not explain why this letter was not received, as it was the store’s policy to sign for certified letters and packages. Id., 16, 19-20. The envelope, meanwhile, suggests that the post office, rather than simply returning it to the sender because of an unknown address, was able to find the intended destination, and tried five times to deliver it before returning it as unclaimed. Though March 25, 2000 was a Saturday, the other four days that delivery was attempted were regular weekdays (two Mondays, a Tuesday, and a Thursday). It would be reasonable to find that the post office was not impeded in its delivery attempt because of the initially missing address; a map shows that College Street in New Haven is only about one-half mile long, and Hot Tomato’s is a restaurant whose presence on that street is quite visible. Thus, our analysis of this case proceeds as if the envelope were correctly addressed, and with the understanding that the post office tried and failed for some unknown reason to deliver the claimant’s letter.

The respondents call our attention to a number of recent cases that concern situations in which, under various statutes, it appeared that a party’s right to proceed might be lost due to the untimely delivery of a certified letter. One set of cases involved a party’s right to seek review of a trial commissioner’s ruling under § 31-301(a) C.G.S., which limited the appeal period to “any time within ten days1 after the entry of an award by the commissioner.” The appeal period had generally been held to begin running on the date that notice of the trier’s decision was sent to the parties. Conaci v. Hartford Hospital, 36 Conn. App. 298, 303 (1994). In Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999), our Supreme Court considered a claimant’s contention that his counsel had not received notice of the trier’s decision until after the ten-day appeal period had expired, thereby making a timely appeal impossible. The Court held that the § 31-301(a) appeal period is tolled “when the aggrieved party establishes that, through no fault of his own, he did not receive notice of the commissioner’s decision within ten days of the date that it was sent.” Id., 590-91 (emphasis added). Kudlacz and its two companion cases were then remanded to this board. See Schreck v. Stamford, 250 Conn. 592 (1999); Kulig v. Crown Supermarket, 250 Conn. 603 (1999).

In each of those cases, this board was charged with the duty of making factual findings concerning the date that the claimant received notice of the trier’s decision. Those proceedings were conducted, and our decisions rendered in Kudlacz, 3407 CRB-8-96-8 (July 21, 2000); Schreck, 3322 CRB-7-96-4 (July 21, 2000); and Kulig, 3335 CRB-6-96-5 (July 21, 2000). We reiterated the Court’s observation that “[i]t is one thing to conclude that an aggrieved party has forfeited the right to such review by failing to take appropriate steps to perfect that right; it is another matter entirely, however, to deprive a party of the right to appeal solely because of a failure of notice for which that party bears no responsibility.” Kulig, supra, quoting Kudlacz, 250 Conn. 589. We also cited another recent Supreme Court decision in Bittle v. Commissioner of Social Services, 249 Conn. 503 (1999), where it stated, “Neither an agency nor the public can wield control over the delivery schedule of the post office. The most either can do . . . is to place [its mail] in the hands of the post office.” Kulig, supra, quoting Bittle, supra, 515-516. Our approach as articulated in Kulig was to hold that the prospective appellant was not expected to trace a chain of custody for the certified letter containing notice of the award, given that proof regarding the conduct of postal employees in processing and delivering mail would be extremely difficult to obtain. Instead, the claimant was required to prove “only that she deserves no blame for failing to receive timely notice of the trier’s decision.” Id. We applied that approach in each of the cases that had been remanded to us by the Court.

There are two important distinctions between those cases and this one. First, the legislative purpose behind § 31-294c(b) differs significantly from the provision entitling parties to a right of appeal. In the latter instance, the remedial purpose of the Act to provide a speedy, effective and inexpensive method of adjudicating the claims of injured workers is being balanced by the idea that providing parties with a right of appeal protects their due process rights, and promotes the accuracy and reliability of decisions (as well as the authoritative development of a body of workers’ compensation law). See Kudlacz, supra, 581-82. Section 31-294c(b), on the other hand, is much more clearly unilateral in its purpose: to protect the rights of claimants, thereby promoting the humanitarian spirit of the Act. Pereira v. State, 228 Conn. 535, 543 n.8 (1994). The drafters of the statute were concerned about needless, prejudicial delays by employers and insurers in administering and paying claims. Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 610-11 (2000). Thus, a law was passed stating that employers would forfeit the right to contest liability for an injury if they failed to respond to a claim within 28 (formerly 20) days. Id., 611. Its intent was to require a prompt and thorough investigation of the employee’s claim so as to yield a specific disclaimer of liability, and to aid employees in being quickly apprised as to what, if any, defects were present in their claims. Pereira, supra; Russell, supra, quoting Menzies v. Fisher, 165 Conn. 338, 342-43 (1973). As such, the Court has held that it is inconsistent with the purpose of that statute for this board to require that a claimant strictly comply with the technical requirements of § 31-294c(a) before a finding of preclusion may be entered. Pereira, supra. That same purpose cannot be overlooked here. Preclusion may be a harsh remedy, but it is a remedy that the legislature intended to make available to claimants on a practical basis.

Second, there were facts found in our decisions in Kudlacz, Kulig and Schreck that supported the conclusion that the prospective appellants neither did nor neglected to do something that would have caused the belated delivery of the trial commissioner’s rulings. In each of the cases, counsel did what it could to establish that its conduct had been diligent in light of the actions of the post office; the brevity of the ten-day time limit was also an important factor, as the post office did not have time to make multiple delivery attempts of the certified letters in question. Here, however, Hot Tomato’s could offer no explanation as to why five attempts at delivering the claimant’s Form 30C had been unsuccessful between March 6, 2000 and April 4, 2000; its only witness was at a loss to explain what had happened. Thus, the trier had no basis upon which to find that Hot Tomato’s was “without fault” in this matter. Given these two important differences between the instant case and the Kudlacz line of cases, we find that the reasoning in those decisions does not control our disposition here.

Similarly, we find the cases of Masko v. Wallingford, 67 Conn. App. 276 (2001), aff’g 4076 CRB-8-99-7 (July 11, 2000), and Bittle v. Commissioner of Social Services, 249 Conn. 503 (1999), to be inapposite. Though they do speak against placing the risk of postal nondelivery upon a party to an action, they both concern circumstances in which a party was attempting to serve documents via certified mail (as statutorily required in Masko and permitted in Bittle) within a day or two of a deadline for notice. The gist of those decisions was that, where it took the post office several days to deliver the certified letter, the party that mailed it just before the deadline should not bear the risk of a tardy delivery, placing them “at the mercy of happenstance.” Masko, supra, 67 Conn. App. 282, quoting Bittle, supra, 519-20. Here, the respondents were not a victim of a few days’ delay in delivering a letter that they had mailed; instead, they were a letter’s intended recipient, who had no explanation for the fact that they had not received it despite five delivery attempts by a postal carrier over a 29-day span of time. The two situations are entirely different.

In fact, we have stated that a claimant need only demonstrate that an adequate Form 30C has been sent by certified mail to his employer’s place of business in order to satisfy the general notice requirements of § 31-321 C.G.S. Bonin v. Thames Valley Steel, 1492 CRB-2-92-8 (Feb. 14, 1997). “It is not the claimant’s fault if his employer did not have a responsible agent or employee in the office at the time of delivery. Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 301 (1993).” Bonin, supra. We have also favorably cited 62B Am. Jur. 2d Process, § 228-29 insofar as we have noted that “where service by certified mail is permitted by statute, such service of process is complete upon mailing. . . . Thus, a defendant may not avoid the service of process by refusing to accept a certified letter containing the process, resulting in the return of the unopened envelope to its sender.” Jimenez v. Montero, 14 Conn. Workers’ Comp. Rev. Op. 40, 43, 1826 CRB-4-93-8 (May 4, 1995) (findings demonstrated that respondent avoided receipt of hearing notices in effort to avoid submitting to jurisdiction of Workers’ Compensation Commission). See also, Rourke v. Summit Tree Service, L.L.C., 4297 CRB-8-00-9 (Aug. 22, 2001) (absence of “L.L.C.” after name of respondent employer on certified mail envelope and presence of unfamiliar return address on envelope did not excuse failure of respondent’s principal to open the letter for over four weeks). Under our law, an employer may be held accountable for its failure to receive notice, should the facts permit the trier to infer that the employer was partially or wholly at fault for the unsuccessful delivery of certified mail. The trier drew such an inference here, which was not unreasonable given the evidence.

Accordingly, the trial commissioner’s decision must be affirmed.

Commissioners Ernie R. Walker and Amado J. Vargas concur.

1 As of October 1, 2001, that appeal period was extended to twenty days via Public Act No. 01-22. BACK TO TEXT

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