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Duglenski v. City of Waterbury

CASE NO. 4913 CRB-5-05-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 18, 2006

PETER W. DUGLENSKI

CLAIMANT-APPELLEE

v.

CITY OF WATERBURY

EMPLOYER

and

BERKLEY ADMINISTRATORS

RESPONDENTS-APPELLANTS

APPEARANCES:

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

The respondents were represented by Marie E. Gallo-Hall, Esq., Montstream & May, L.L.P., 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the January 31, 2005 Ruling on Motion to Preclude of the Commissioner acting for the Fifth District was heard July 15, 2005 before a Compensation Review Board consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent City of Waterbury and its insurance administrator Berkley have petitioned for review from the January 31, 2005 Ruling on Motion to Preclude by the Commissioner acting for the Fifth District. Their contention on appeal is that the trier erred by granting the claimant’s Motion to Preclude the respondent from contesting liability for a hypertension claim. We find error, and reverse the trial commissioner’s decision.

The claimant (acting through counsel) filed two Form 30C notices of claim that were received at the Fifth District office on May 13, 2003. One Form 30C lists a date of injury of April 29, 2003, with the associated body part “Heart and Hypertension: Cardiovascular System under both Chapter 568 and Section 7-433c.” The other Form 30C lists the same body part, but with a date of injury “03/01/1987 through 04/29/2003.”

During the 28-day response period provided by § 31-294c(b), Berkley Administrators filed a single Form 43 declaring its intention to contest liability. The Form 43 listed the date of injury as April 29, 2003, and stated that “No condition of heart disease, hypertension, or cardiovascular disease compensable under the provision of section 7-433c or Chapter 568. No disability suffered. No economic loss. Condition personal in nature is not work related. No accident, injury or disease arising out of or in the course of employment.” Below the section in which the injury is described is a space that is to be checked off if the injury being contested “is an Occupational Disease or a Repetitive Trauma.” The box is not checked. The respondent later filed a supplemental Form 43 on July 1, 2004, adding several additional reasons to contest and specifically mentioning the March 1, 1987 through April 29, 2003 time period. We note that this supplemental form cannot stand on its own as a timely disclaimer under § 31-294c.

The trial commissioner found that the city’s Form 43 covered the specific injury of May 14, 2003, but not the repetitive trauma period that preceded it. “The Notice of Intention to Contest . . . since it listed the specific injury date of April 29, 2003, did not adequately identify the date of injury for the claimant’s claim of injury resulting from repetitive trauma. Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596 (2000).” Findings, ¶ C. The trier reasoned that the claimant had the right to file separate, simultaneous notices of claim for a specific injury and a repetitive trauma injury to the same body part. As the Form 30C provided sufficient information regarding the period of time over which the alleged injury occurred, the trial commissioner granted the claimant’s Motion to Preclude dated April 19, 2004. The respondents have appealed that decision to this board.

The determination of whether a notice of claim is sufficient to allow an employer to make a timely investigation of the claim has been defined as a question of law by our courts. Pereira v. State, 228 Conn. 535, 542-43 n.8 (1994); Chase v. Department of Motor Vehicles, 45 Conn. App. 499, 508 (1997). It follows that whether a Form 43 is sufficient to communicate a respondent’s intent to contest liability for a specific element of a claimant’s case is also a question of law rather than fact. See Pereira, supra, 542; Menzies v. Fisher, 165 Conn. 338, 345 (1973). The decision does not depend upon the introduction of outside evidence, as it is completely determined by the contents of the document itself. Thus, we do not simply review the trier’s factual finding that “the respondent City did not file a Notice of Intention to Contest with regard to the claimant’s repetitive trauma claim within the twenty-eight day period . . .” as a finding of evidentiary credibility that requires significant deference. See Findings, ¶ 6. Our review of the matter is plenary.

In the case of 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), this board was faced with a set of facts comparable to those here. A Form 30C for a heart injury had been filed on February 23, 1998, listing as the date of accident, “1/6/98 and Repetitive Trauma from 9/89 to 1/6/98.” The respondents’ disclaimer listed an injury date of January 6, 1998, and stated, “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.” Next to the question, “Occupational Illness or Repetitive Trauma?” the respondents’ representative had typed “N/A.” The trial commissioner had granted a Motion to Preclude on the ground that the disclaimer was insufficient to notify the claimant of the employer’s intent to contest the claimed injury.

With regard to the repetitive trauma claim, we reasoned, “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.” Id.

Here, the respondent also included in its Form 43 the date of the alleged specific injury, which served also as the date of last exposure to repetitive trauma. The box for occupational disease or repetitive trauma was left blank. The description of the contested injury included the phrases, “no condition of heart disease, hypertension or cardiovascular disease compensable under the provision of section 7-433c or chapter 568,” and “no accident, injury or disease arising out of or in the course of employment.” A reasonable person reading this would assume that the respondent was challenging the notion that the claimant had suffered a cardiovascular condition compensable under either § 7-433c C.G.S. or the Workers’ Compensation Act itself. The language typed into the “Reasons for Contest” space on the disclaimer is not ambiguous, and it would be hard to imagine any claimant reading such language and assuming that his repetitive trauma claim for cardiovascular disease was not being challenged.

The instant fact pattern is much more similar to that in West than it is to the fact pattern in Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596 (2000). In Russell, it was clear from the context of the Forms 43 that the respondent was focusing solely on a 1991 date of injury rather than on an alleged period of repetitive traumatic incidents that had occurred prior to September 23, 1994. That is not the case here. Also, the fact that a single notice alleging both repetitive trauma and accidental injury was filed in West, while two separate notices of claim were filed in this case, does not create a material distinction between the two cases. In fact, the respondents’ argument may be even stronger here than it was in West, as the “repetitive trauma” box was merely left blank, rather than having been marked “N/A.” Given that the claimant had alleged both specific and repetitive trauma injuries, the respondents’ failure to fill in that blank does not create much confusion, and does not detract significantly from the impact of the language written below in the space for “Reasons for Contest.” Accordingly, we follow the precedent of West, and reverse the decision of the trial commissioner.

The trial commissioner’s decision is hereby reversed in accordance with this opinion.

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

Workers’ Compensation Commission

Page last revised: January 23, 2006

Page URL: http://wcc.state.ct.us/crb/2006/4913crb.htm

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