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Austin v. State of Connecticut Dept. of Correction

CASE NO. 5014 CRB-8-5-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 8, 2006

KERRY AUSTIN

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPT. OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS NORTH AMERICA, INC.

ADMINISTRATOR

APPEARANCES:

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

The respondent employer was represented by Michael Belzer, Esq., Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 28, 2005 Finding After Remand to the Commissioner acting for the First District was heard May 19, 2006 before a Compensation Review Board panel consisting of Commissioners Nancy E. Salerno, A. Thomas White, Jr., and Amado J. Vargas.

OPINION

NANCY E. SALERNO, COMMISSIONER. The claimant has petitioned for review from the October 28, 2005 Finding After Remand to the Commissioner acting for the First District. The claimant contends on appeal that the trial commissioner erred by denying a Motion to Preclude the respondent from contesting compensability. We find no error on review, and affirm the trial commissioner’s decision.

The claimant worked for the respondent at all times relevant to this case. On May 2, 2002, he filed a notice of claim listing the injured body part “Hepatitis C,” and describing his injury as neither an occupational disease nor repetitive trauma. The date of injury was listed as “Sometime between Approximately 01/02/2001 – 12/20/2001.” The respondents allege that they filed a Form 43 on June 5, 2002. The claimant then filed a Motion to Preclude on August 6, 2002, claiming the respondent’s disclaimer was both improperly served and filed beyond the statutory time limit.1

In addressing the Motion to Preclude, the trial commissioner found that the respondent’s June 5, 2002 Form 43 was not filed within 28 days of the May 2, 2002 receipt of the claimant’s Form 30C, as required by § 31-294c(b). The trier initially ruled that the jurisdiction of this Commission was uncertain because the Form 30C listed dates of specific injury which occurred more than one year prior to the filing date of the form, i.e., January 2, 2001 – May 1, 2001. The trier then denied the Motion to Preclude and ordered the claim to remain open subject to further orders of this Commission. The claimant appealed. In Austin v. State of Connecticut/Dept. of Correction, 4852 CRB-5-04-9 (August 19, 2005), this board sent the case back for a more determinative finding on subject matter jurisdiction. On remand, the trier ruled that this Commission had jurisdiction to hear the Motion to Preclude, as some of the possible dates of injury listed in the Form 30C fell within one year prior to May 2, 2002. The trier again denied the Motion to Preclude, however, leaving the claimant to his proof on the merits. The claimant has once again appealed that ruling to this board.

We begin by discussing the jurisdictional issues that are implicated by this appeal, including this Commission’s jurisdiction over the instant claim, and this board’s jurisdiction over an appeal from the denial of a Motion to Preclude. We address them in that order, as the first jurisdictional issue is potentially dispositive of all issues concerning the May 2, 2002 notice of claim. The timeliness of a claim is jurisdictional, and once a jurisdictional issue is raised—either by a party, or sua sponte by the presiding judicial or administrative authority—it must be resolved. Carver v. Naugatuck Police Department, 4902 CRB-5-04-12 (January 9, 2006); see also, Del Toro v. Stamford, 270 Conn. 532 (2004)(despite failure to timely contest claim, respondents could challenge subject matter jurisdiction on ground that named injury did not fall within scope of Act); Castro v. Viera, 207 Conn. 420, 429 (1988)(employer could contest existence of employment relationship despite failure to file timely Form 43).

Section 31-294c(a) C.G.S. provides that written notice of a compensation claim must be given within one year of the date of the accident (or the last workplace exposure to incidents of repetitive trauma; see Discuillo v. Stone & Webster, 242 Conn. 570 (1997)), or within three years from the first manifestation of a symptom of occupational disease. The necessary elements of notice include the date and place of the accident (or first manifestation of occupational disease symptom) and the nature of the resultant injury. As per § 31-294c(c), in the event of a defect or inaccuracy of notice of claim, the employer may receive allowance to the extent that any defect or inaccuracy has been prejudicial to the employer, assuming that the employer was ignorant of the facts concerning the personal injury.

Here, the claimant’s initial Form 30C alleges the occurrence of a specific injury, hepatitis exposure, over a range of possible dates spanning most of 2001. See Doe v. Stamford, 241 Conn. 692 (1997) (exposure to life-threatening infectious diseases is itself a compensable injury). The first jurisdictional question we must answer is whether that Form 30C is sufficiently specific to satisfy the requirements of § 31-294c. The absence of an accurate date of injury in a Notice of Claim normally constitutes a defect of notice. Surowiecki v. UTC/Pratt & Whitney, 4233 CRB-8-00-5 (May 24, 2001); Troske v. Wolcott View Manor, 13 Conn. Workers’ Comp. Rev. Op. 323, 1687 CRB-5-93-4 (April 26, 1995). Where the date of injury is incorrect or unclear, the employer is entitled to an opportunity to demonstrate prejudice as a result of that defect. Surowiecki, supra.

However, the inaccuracy in a defective notice does not bar recovery, even where the employer shows that it was unaware of the injury and was prejudiced by the defect. Id. A commissioner is not required to dismiss a claim just because the precise date of injury cannot be determined. Troske, supra. Instead, such defects “simply require a reasonable allowance commensurate with the prejudice; and the burden of furnishing a basis for estimating that allowance is by the [A]ct cast upon the employer.” Surowiecki, supra, quoting Schmidt v. O.K. Baking Co., 90 Conn. 217, 224 (1916). To that end, the employer in this case may address at subsequent proceedings if and to what extent it was prejudiced by the imprecise description of the date of injury. Troske, supra.

That is not to say that the claimant’s May 2, 2002 notice is jurisdictionally adequate to support a claim for every date within the spectrum of dates that are listed. The one-year notice requirement of § 31-294c(a) would preclude any claim based on an accidental injury date occurring more than one year prior to the date the Form 30C was filed. Therefore, on its face, the claimant’s notice is jurisdictionally sufficient to maintain an accidental injury claim for dates of injury/exposure that occurred on or after May 2, 2001. This is consistent with ¶ A of the trial commissioner’s Finding, and we affirm his finding that jurisdiction exists in this matter.

Having ruled that the Form 30C presents a cognizable claim under the Act, we then address an issue raised by the respondent in its brief: whether this board has jurisdiction to consider an appeal from the denial of a Motion to Preclude. The respondent urges this board to rule that the denial of a Motion to Preclude is not reviewable until after a final decision on the merits has been issued. The primary basis for this argument is that a Motion to Preclude is not truly a motion recognized by the Act as contemplated by § 31-301(a), which grants this board the authority to hear appeals from three categories of rulings, including decisions upon motions. See Brief, p. 12.

In response, we observe that there is a regulation in place setting forth the procedure for filing a Motion to Preclude presentation of defenses. Admin. Reg. § 31-297(b)-1. Thus, this motion is indeed recognized by the Act. Also, we have held in the past that the denial of a Motion to Preclude may be appealed to this board under § 31-301(a), even though it is not a final judgment for purposes of appeal to a higher court. Bell v. Dow Corning STI, Inc., 13 Conn. Workers’ Comp. Rev. Op. 109, 1777 CRB-4-93-7 (January 30, 1995); cf. Timothy v. Upjohn Co., 3 Conn. App. 162 (1985)(denial of motion to preclude does not threaten preservation of rights held by claimant, and is not final judgment for purposes of appeal to Appellate Court). We see no compelling reason to overturn that precedent.

We continue to voice the principle that, absent a risk of irreparable harm, parties should refrain from immediately appealing evidentiary and other interlocutory rulings in order to promote judicial economy and speedy decisionmaking. See, e.g., Richardson v. Bic Corp., 4953 CRB-3-05-6 (September 7, 2006); Kuba v. Michael’s Landscaping & Lawn Service, 4266 CRB-4-00-7 (August 29, 2001). Still, this does not undo our subject matter jurisdiction over this motion. We also recognize that, as a practical matter, circumstances may arise in which a claimant may decide that his or her interest in resolving the preclusion issue under § 31-294c(b) outweighs the benefit gained by an immediate progression to the presentation of the case on the merits. Therefore, we decline to hold that the denial of a Motion to Preclude may not be appealed to this board.

The Motion to Preclude itself was properly denied by the trial commissioner. Contrary to the claimant’s argument, the facts of Chase v. State, 45 Conn. App. 499 (1997), are distinguishable from the facts here, and a reversal is not required. In Chase, the claimant alleged repetitive trauma to his back and left knee, and listed the date of injury as July 19, 1989, “or sometime prior thereto.” Id., 502. Repetitive trauma is by its nature an injury that occurs over time, and the precise date of injury generally marks the last date of exposure for jurisdictional purposes. See Discuillo, supra. The respondent in Chase also had knowledge of the injury claim on July 19, 1989, and it was in ready position to investigate upon receiving a Form 30C on July 28, 1989. “If the results of the defendant’s investigation did not reveal an accidental injury on the precise date given in the notice, or in the several days prior thereto, the defendant reasonably could have disclaimed liability for the traumatic injury.” Id., 502.

Here, in contrast, the claimant alleged that he contracted a communicable disease by virtue of an unspecified incident that occurred sometime during 2001. There is no additional information provided in the notice of claim. It would be difficult and time-consuming for an employer to investigate this allegation without more information. A year is a broad time period to cover, and there are many possible mechanisms by which the claimant could have theoretically been exposed to the disease during that time. We concur with the trial commissioner’s finding that this notice was not sufficiently specific to allow the employer to make a timely investigation of the claim in order to determine whether to contest liability. See Menzies v. Fisher, 165 Conn. 338 (1973); Pereira v. State, 228 Conn. 535, 542-43 n.8 (1994); Chase, supra, 506-507. “Failure to include the correct date of injury in an accidental injury claim normally constitutes insufficient information for the employer to investigate the claim. . . . In a case where there is doubt as to the efficacy of a claimant’s notice, a trial commissioner’s decision to proceed on the merits of the case is not an unwise one.” Drivas v. Fair Auto Park, 15 Conn. Workers’ Comp. Rev. Op. 366, 2279 CRB-7-95-1 (June 28, 1996).

The trial commissioner’s decision is hereby affirmed.

Commissioners A. Thomas White, Jr., and Amado J. Vargas concur.

1 A second Form 30C was filed by the claimant on September 30, 2002, reflecting the same “probable” injury date and adding the description, “First manifestation of symptoms probably at the earliest in December 2001.” There, the claimant stated that the injury was an occupational illness or repetitive trauma. Two additional notices of claim were filed on November 4, 2002, listing as the date of injury “5/8/82 - 12/20/01.” On one notice, the occupational disease/repetitive trauma option was selected, while on the other it was not. This Commission’s records contain three Form 43 notices of the respondent’s intention to contest liability, dated October 8, 2002, November 15, 2002, and December 4, 2002. None of these forms or disclaimers are at issue in this appeal. BACK TO TEXT

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