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DiStasi v. Town of Watertown Board of Education

CASE NO. 5010 CRB-5-05-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 25, 2006

MICHELINA DiSTASI, Dependent Widow of DOMENICO DiSTASI, Deceased

CLAIMANT-APPELLANT

v.

TOWN OF WATERTOWN BOARD OF EDUCATION

EMPLOYER

and

BROADSPIRE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Matthew Dodd, Esq. and Ross T. Lessack, Esq., Dodd, Lessack, Dalton & Dodd, LLC, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondents were represented by Colette Gladstone, Esq., Howd & Ludorf, 65 Wethersfield Avenue, Hartford, CT 06114-1160.

This Petition for Review from the October 3, 2005 Finding and Dismissal1 of the Commissioner acting for the Fifth District was heard March 24, 2006 before a Compensation Review Board panel consisting of Commissioners Stephen B. Delaney, Nancy E. Salerno and Ernie R. Walker.

OPINION

STEPHEN B. DELANEY, COMMISSIONER. We have opined that to preclude a respondent from contesting a claim due to inadequacies in their disclaimer is “a harsh remedy” 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). In the instant case the trial commissioner reviewed the Form 43 filed by the respondent Watertown Board of Education and determined that the remedy of preclusion was not warranted. The claimant appealed and upon review we conclude the trial commissioner reached a legally correct decision, and hence, we dismiss the appeal.

The facts are essentially undisputed, making this case a dispute over legal interpretation. The decedent was an employee of the respondent-employer who died of a heart attack at home on June 30, 1999. The claimant, the decedent’s spouse, filed a timely Form 30C seeking benefits under § 31-306 C.G.S. The respondents filed a Form 43 contesting liability within 28 days of receipt of the claim. The Form 43 stated that the claim was contested for the following reasons: “Denying heart attack, repetitive and cumulative stress, physical and mental as being causally related to claimant’s occupation. Heart attack occurred at home. No physical injury.” The claimant filed a Motion to Preclude asserting that this disclaimer was legally inadequate. On October 3, 2005 the Commissioner acting for the Fifth District reached a contrary determination, and issued a Finding and Dismissal regarding the Motion to Preclude. The claimant filed a Motion to Correct and a Petition for Review. The Motion to Correct was denied and the appeal ensued.

The appeal is based on two grounds. The claimant states that the Form 43 was legally deficient in that it was too vague and conclusory as to the nature of the defense, and also failed to check off the appropriate box regarding repetitive trauma. The claimant also believes the absence of the surviving spouse’s name on the Form 43 and the fact it was not served on her via certified or regular mail renders the disclaimer legally ineffective.

Our case law is not supportive of these positions. In regards to the substance of the Form 43 we find this case indistinguishable from Duglenski v. Waterbury, 4913 CRB-5-05-2 (January 18, 2006), appeal dismissed for lack of final judgment/lack of jurisdiction, A.C. 27333 (June 8, 2006) and Tovish v. Gerber Electronics, 19 Conn. App. 273 (1989) where alleged technical deficiencies in a disclaimer did not rise to a level warranting a Motion to Preclude. As to the issue of service and notice we find Walter v. State, 63 Conn. App. 1 (2001) and Augeri v. UTC/Pratt & Whitney, 3591 CRB-8-97-4 (June 3, 1998) are dispositive of the issue.

In Tovish, supra, the five elements of a viable worker’s compensation claim are outlined (1) jurisdiction; (2) timely notice or the presence of an exception to notice; (3) the legal qualification of the claimant as employee; (4) the legal qualification of the respondent as employer; and (5) the occurrence of a “personal injury” as per the statute. An effective disclaimer must contest one of the five elements of the claim.

The disclaimer upheld in Tovish stated, “Injury [heart attack] did not arise out of or in the course and scope of employment.” Id., 274. The Appellate Court concluded, “the defendants’ disclaimer clearly contests the fifth element. We are persuaded the disclaimer was sufficient to apprise the plaintiffs that the defendants were challenging an element the plaintiffs were obliged to prove in order to meet the prima facie threshold for their claim.” Id., 276.

We believe the verbiage of the instant disclaimer is so similar to the language found adequate in Tovish contesting the presence of a compensable injury that we concur in that decision’s holding “[t]he denial that the personal injury, the heart attack, arose out of and in the course of employment was neither vague nor conclusory; it adequately stated what was at issue.” Id. We declined in West, supra, to mandate specific “magic words” be employed in a disclaimer. This semantic rigidity has not been applied in other venues, as we have not placed such a grammatical requirement for competent medical evidence; see Struckman v. Burns, 205 Conn. 542, 554-556 (1987).

In regards to the absence of a checked box on the Form 43 regarding the issue of repetitive trauma, we recently opined in Duglenski, supra, that one must read the disclaimer as whole when this occurs and “[a] reasonable person reading this would assume 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.” Id. We applied our previous holding in West, supra, “the respondents provided enough information here to notify the claimant of the substantive ground for their contest” to deem the Form 43 legally sufficient notwithstanding the unchecked box. We find the present case indistinguishable from Duglenski or West.

The claimant’s final argument centers around the errant address on the Form 43 as it was addressed to the decedent, listed him as the claimant and was not addressed to the surviving spouse as claimant under § 31-306 C.G.S. We find no difference between this scenario and the scenario in Augeri, supra, “the respondent’s Form 43 was sent to the correct address and the claimant widow does not deny she received said notice.” The claimant asserts there is a difference as in Augeri the trial commissioner found the notice clearly contested the claimant’s claim. We cannot discern how Findings, ¶ 12 of the Finding and Dismissal differs, “I find the Form 43 filed by the Respondent was specific in its language as required by Connecticut General Statutes 31-297 and the Menzies and Tovish line of cases.” It is clear the claimant received actual notice as the Form 43 was sent registered mail to her residence and a receipt provided to the U.S. Postal Service. Respondents’ Exhibit B. The claimant does not present an argument she was substantively prejudiced due to these errors. Therefore, we find Augeri dispositive of this issue.

We also find Walter, supra, on point. In Walter, a claimant for a § 31-306 C.G.S. claim filed a motion to preclude when she was not named in the disclaimer, rather, as in this case, it named the decedent and was mailed to the address of the decedent and the claimant. The Appellate Court concluded this constituted “adequate notice” that the claim was contested, particularly as the Commission received timely notice of the disclaimer and “[t]he state fell short only with respect to the statutory requirement that the name of the claimant be included in the form 43 . . .” Id., 11. The Appellate Court held, “[w]e cannot conclude that a failure to send a copy of the notice of contest to the dependent plaintiffs, when a notice is sent to the decedent employee at the same addresses, is ineffective for purposes of notice.” Id.

We uphold the Finding and Dismissal of the Motion to Preclude and herein dismiss the appeal.

Commissioners Nancy E. Salerno and Ernie R. Walker concur in this opinion.

1 We note that an extension of time was 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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