CASE NO. 4587 CRB-5-02-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 27, 2003
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by Ross T. Lessack, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.
The respondents were represented by James Moran, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.
This Petition for Review from the October 24, 2002 Decision of the Commissioner acting for the Fifth District was heard May 30, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and A. Thomas White, Jr.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the October 24, 2002 Decision of the Commissioner acting for the Fifth District. They contend on appeal that the trier erred by granting the claimant’s Motion to Preclude them from contesting liability for the claimant’s alleged injury. We find error, and reverse the decision of the trial commissioner.
The claimant prepared a notice of claim for compensation dated February 23, 1998. The notice was sent via certified mail to the employer and to this Commission’s Fifth District office, where it was received on February 25, 1998. The notice stated that the claimant “sustained injuries arising out of and in the course of his employment as follows: Date of Accident: 1/6/98 and Repetitive Trauma from 9/89 to 1/6/98; Injury: Heart; Town: Thomaston, Connecticut.” Shortly thereafter, the respondents filed a Form 43 disclaiming liability, which was sent via certified mail and received by this Commission on March 2, 1998. The disclaimer stated that “alleged injury did not occur in the course and scope of employment. No work related injury. In response to notice of claim dated 2-23-98.” The date of the listed injury was January 6, 1998, and the listed body part was the heart. In the space reserved for an answer to the question, “Occupational Illness or Repetitive Trauma?” the preparer of the Form 43 typed “N/A.”
The claimant subsequently filed a Motion to Preclude the respondents from contesting liability on the ground that this disclaimer was insufficient under § 31-294c C.G.S. After reciting the grounds stated in the disclaimer, the trial commissioner observed that the Form 43 did not challenge the claimant’s employment with the respondents, nor did it challenge the timely filing of the claim. He then granted the claimant’s Motion to Preclude, citing Del Toro v. Stamford, 64 Conn. App. 1 (2001).1 The respondents have appealed that decision to this board.
Pursuant to § 31-294c(b), an employer or insurer who seeks to contest liability to pay compensation must file “on or before the twenty-eighth day after he has received a written notice of claim, a notice . . . 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 disclaimer need not be expressed with the technical precision of a pleading, but must be sufficient to communicate to the claimant specific substantive grounds on which compensability will be contested. Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 621 (2000), quoting Pereira v. State, 228 Conn. 535, 541 (1994); Menzies v. Fisher, 165 Conn. 338, 347-48 (1973). A statement such as “we deny a compensable accident or injury” is insufficient to satisfy this requirement because it is too general to inform the claimant of any specific basis for contest. Menzies, supra. In contrast, our courts have held sufficient such statements as “injury (heart attack) did not arise out of or in the course and scope of employment;” Tovish v. Gerber Electronics, 19 Conn. App. 273 (1989); and “Respondents do contend plaintiff’s stress did not arise out of or in the course of her employment.” Pereira, supra. As the Supreme Court explained in Pereira, “One of the elements of a prima facie claim is that the claimant has suffered a personal injury arising ‘out of and in the course of employment.’ . . . [The respondents’ statement] clearly apprises the plaintiff of the defendant’s intention to challenge an element of her claim, namely, whether the injury arose out of and in the course of employment.” Id., 542.
The disclaimer filed by the respondents here takes the position that the claimant’s alleged injury “did not occur in the course and scope of employment.” It refers directly to the February 23, 1998 notice of claim, to an injury date of January 6, 1998, and to the heart as the concerned body part. We disagree with the claimant’s contention that this information was insufficient under Russell, supra, to constitute a valid disclaimer. The absence of the words “arise out of” is not significant in this context, as the phrase used by the respondents (“the course and scope of employment”) adequately addresses the same subject matter. This language was sufficient to put the employee on notice that the respondents were contesting the relationship between the claimant’s alleged January 6, 1998 heart injury and his employment duties and activities.
Likewise, the failure of the notice to specifically mention repetitive trauma is not fatal. Unlike the three insufficient disclaimers that were filed in Russell, each of which cited a May 2, 1991 date of injury despite the claimant’s Form 30C allegation that repetitive trauma had been suffered “prior to 9/23/94,” the disclaimer in this case clearly addresses the January 6, 1998 injury date cited by the claimant, and the correct body part (the heart). The use of the symbol “N/A” as a response to the question, “Occupational Illness or Repetitive Trauma?” may have been a bit cryptic, but in this context, it cannot reasonably be read to signify that the respondents were not contesting the claimant’s allegation that repetitive trauma led to his heart problem.
Preclusion is a remedy sanctioned by the Workers’ Compensation Act in recognition of the importance of protecting a claimant’s right to a speedy and effective resolution of his or her claim. See Menzies, supra, 343-44. However, it is nonetheless a harsh remedy. Where the common-sense interpretation of a disclaimer reveals concrete reasons for contesting a claim, it would be inappropriate to preclude an employer or insurer from maintaining its defense based on the absence of two or three “magic words” in the Form 43. As the respondents provided enough information here to notify the claimant of the substantive ground for their contest; see Pereira, supra; Tovish, supra; they are entitled to raise that ground as a defense against liability for the claimant’s claim.
Accordingly, the trial commissioner’s granting of the Motion to Preclude is reversed.
Commissioners James J. Metro and A. Thomas White concur.
1 The Del Toro court held that an employer who had failed to file a timely Form 43 was not entitled to dismissal of the underlying claim on the ground that this Commission lacked subject matter jurisdiction over the injury listed on the claimant’s Form 30C. The court explained that the question of whether a type of injury is compensable must be distinguished from questions concerning the existence of an employer-employee relationship and the proper initiation of a claim under § 31-294c C.G.S. As the former was held not to be a jurisdictional issue, the court ruled that the claimant’s Motion to Preclude should have been granted. span class="back">BACK TO TEXT