Panasci v. City of Waterbury

The claimant was represented by Edward T. Dodd, Jr., Esq., Dodd, Lessack, Ranado & Dalton, L.L.C., 700 West Johnson Avenue, Cheshire, CT 06410.

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

This Petition for Review from the May 2, 2003 Decision of the Commissioner acting for the Fifth District was heard on November 21, 2003 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 respondents, City of Waterbury and Berkley Administrators, have appealed the May 2, 2003 Decision of the Commissioner acting for the Fifth District. We reverse the decision of the trial commissioner.

The pertinent facts are as follows. On or about August 27, 2001 the claimant filed a Notice of Claim for Compensation (Form 30C). On September 4, 2001 the respondents filed a Notice of Intention to Contest Liability to Pay Compensation (Form 43). On the Form 43, the respondents stated grounds for contesting the claimant’s claim were, “insufficient medical documentation to support a compensable injury, claim or disability as causally related to employment.” On September 18, 2002 the claimant filed a Motion to Preclude the respondents from contesting the claim. The claimant contended the respondents’ Form 43 was invalid as a matter of law in that it failed to allege specific grounds on which the claim was contested.

On May 2, 2003 the trial commissioner granted the claimant’s Motion to Preclude. The trial commissioner found the claimant had no legal obligation to provide medical documentation in support of his claim and therefore the respondents could not rely on his failure to do so as a legally supportable defense. The respondents appealed this decision because they contend the language of the Form 43 complies with the specificity required by § 31-294c(b) C.G.S.

In Menzies v. Fisher, 165 Conn. 338 (1973) the Connecticut Supreme court held a Form 43 should state more than a general denial in order to be operative. The criteria used to judge the validity of a disclaimer is “whether it reveals to the claimant specific substantive grounds for the contest.” Id., 345. “The point of this criterion is to inform the claimant of the deficiencies of his claim after the defending party has had an opportunity to make a thorough investigation.” Id.

A respondent needs only contest a specific element of the claimant’s prima facie case to form a valid disclaimer. Pereira v. State, 228 Conn. 535 (1994). In Tovish v. Gerber Electronics, 19 Conn. App. 273, 275 (1989) the Appellate Court held a disclaimer which stated, ‘Injury did not arise out of the course and scope of employment’ was valid because it challenged an element of the claimant’s prima facie case.

In Marshall v. UTC Pratt & Whitney, 11 Conn. Workers’ Comp. Rev. Op. 204, 1317 CRD-1-91-10 (September 27, 1993), we upheld the respondent’s disclaimer which stated, “no proof of 8/27/87 alleged exposure arising in and out of the course of employment. No medical substantiation.” We held this disclaimer was sufficient to put the claimant on notice that the respondents were contesting whether the injury arose in and out of the course of employment. The disclaimer in this case appears substantially similar to that in Marshall. The disclaimer in this case similarly puts forth the respondents’ defense that the injury was not causally related to the claimant’s employment. It also put the claimant on further notice that they believed there was insufficient medical documentation to substantiate his claim. Although medical documentation is not required to be filed with a Form 43, it did not prejudice the claimant to know the respondents were of the belief the existing documentation was insufficient.

Preclusion is a harsh remedy which should not be granted if a respondent has put forth a concrete reason for contesting a claim. Harkins v. State/DMR, 4650 CRB-5-03-3 (March 4, 2004); West v. Heitkamp, Inc., 4587 CRB-5-02-11 (October 27, 2003), appeal dismissed for lack of final judgment, A.C. 24805 (February 11, 2004). The claimant argues the Form 43 fails to furnish him with specific substantive grounds for the contest. Essentially, the claimant is asking the respondents to offer their best defense at the outset of the case, prior to having become aware of the claimant’s evidence. This goes beyond the specificity § 31-294c(b) requires. The respondents’ Form 43 sets forth an element of the claimant’s prima facie case which they are contesting. No further specificity is required.

Therefore, we reverse the May 2, 2003 Decision of the Commissioner acting for the Fifth District.