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Carver v. Borough of Naugatuck Police Department

CASE NO. 4902 CRB-5-04-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 9, 2006

ROBERT CARVER

CLAIMANT-APPELLEE

v.

BOROUGH OF NAUGATUCK POLICE DEPARTMENT

EMPLOYER

and

CIRMA

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Ross Lessack, Esq., Dodd, Lessack, Dalton & Dodd, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondent-employer and CIRMA was represented by Stacey Francoline, Esq., Montstream & May, L.L.P., 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087 for the Chapter 568 claim.

At the trial level, the respondent-employer was represented by William J. Ward, Esq., Ouellette, Deganis, Gallagher & Ward, L.L.C., 143 Main Street, Cheshire, CT 06410. The respondent-employer and CIRMA in this appeal was represented by James Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033 for the Section 7-433c claim.

This Petition for Review from the December 27, 2004 Ruling on the Motion to Preclude of the commissioner acting for the Fifth District was heard June 17, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO. The respondent filed an appeal from the December 27, 2004 Ruling on the claimant’s Motion To Preclude of the Commissioner acting for the Fifth District.1 The pertinent facts are as follows.

The claimant appellee was a police officer for the Borough of Naugatuck. The claimant appellee began his employment with the respondent in 1980 and continued that employment through at least the date of the initial formal hearing. See Finding ¶ 1. The claimant filed three (3) Forms 30C Notices of Claim dated June 3, 2003. Two of the claim notices identify the date of injury as “Repetitive & Cumulative Approx. 2/1/80–Present” and cite the body parts effected as “Hypertension/heart disease/cardiovascular condition.” The only distinction between these two Forms 30C is that one Form 30C indicates that the claim is being brought pursuant to chapter 568 and the second Form 30C is being brought pursuant to § 7-433c.

The third Form 30C filed also cites the date of injury as “Repetitive & Cumulative Approx. 2/1/80–Present.” However, that Form 30C identifies the body parts affected as bilateral upper and lower extremities and describes the injury as “[a]ggravation of pre-existing arthritis/inflammatory disease.” See Claimant’s Exhibits A, B and C. This third claim was also brought pursuant to chapter 568.

A Form 43 notice of contest to the § 7-433c claim was filed by the respondent August 7, 2003. A Form 43 notice of contest as to the heart and hypertension claim brought pursuant to chapter 568 was filed August 7, 2003 and the Form 43 notice of contest as to the claim for bilateral upper and lower extremities was filed August 13, 2003. Sec. 31-294c(b) provides in pertinent part:

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.

At the outset, we must note some unusual procedural history which accompanies this appeal. In the proceedings before the trial commissioner the respondents’ legal representative as to its liability for the claim brought pursuant to § 7-433c was Attorney William J. Ward of Ouellette, Deganis, Gallagher and Ward. During the course of this appeal Attorney James Pomeranz of Pomeranz, Drayton and Stabnick filed an appearance in lieu of Attorney Ward. The respondents’ chapter 568 liability was insured by the Connecticut Inter-Local Risk Management [CIRMA]. The respondents were represented by Attorney Stacey Francoline of Montstream and May in relation to the chapter 568 aspect of the claims brought. Despite the three claims of the appellee, two legal representatives for the appellant, only one petition for review was filed. Ordinarily, we might find this problematic. However, the petition for review does indicate that the respondent’s insurer was CIRMA and it appears the trier consolidated all the claims and issued the one ruling under review here. Thus, given the seeming unity of the employer’s interests in defending and appealing the trial commissioner’s ruling, as well as the jurisdictional grounds upon which the appeal rests, we cannot say respondents failed to properly preserve its right to appeal issues relating to the chapter 568 aspects of the commissioner’s ruling.

The issue for our consideration is whether the trial commissioner erred in granting the claimant’s motion to preclude. The appellants argue the trier’s ruling was legally inappropriate on two grounds. First, they claim the Form 30C Notices of Claim filed by the claimant were legally insufficient in that the span of time over which the injuries were said to have occurred provided a date range so vast it was virtually impossible for them to investigate the merits of the claims. Secondly, they argue they are entitled to an evidentiary hearing as to whether subject matter jurisdiction exists.

We begin with our consideration of the issue of whether the appellants have a right to an evidentiary hearing as to claimant’s alleged failure to comply with the statute of non claim set out in § 31-294c. The commissioner’s ruling acknowledges the respondents raised the issue of the claimant’s failure to comply with the time limitations set out in § 31-294c for the filing of claims. However, the commissioner’s ruling is silent as to whether the claims brought by the claimant were timely.

In Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276 (1988), cert. denied, 207 Conn. 805 (1988) the Appellate Court held the preclusion of defenses to liability “only arises upon the timely giving of a written notice of claim for compensation by the employee . . . .” The timeliness of a claim pursuant to § 31-294c is jurisdictional. As such it may be raised at any time and must be resolved. Cf: Gerte v. Logistec of CT., Inc., 4820 CRB-3-04-6 (June 24, 2005), appeal docketed A.C. 26725 (July 12, 2005) (held jurisdictional issue must be decided but appellant not free to re-litigate issue of jurisdiction on a different theory at a later date.).

We therefore remand this matter for further proceedings as to the issue of whether the claims brought were timely pursuant to § 31-294c.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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