State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Berry v. State of Connecticut Dept. of Public Safety

CASE NO. 5162 CRB-3-06-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 20, 2007

THERESA BERRY, Dependent widow of ROBERT D. BERRY, Deceased

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPT. OF PUBLIC SAFETY

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Robert J. Krzys, Esq., Attorney at Law, 557 Prospect Avenue, Hartford, CT 06105-2922.

The respondent was represented by Lisa G. Weiss, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the September 20, 2006 Finding and Dismissal for Lack of Jurisdiction of the Commissioner acting for the Third District was heard June 15, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Peter C. Mlynarczyk.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal addresses questions which are fundamental to our workers’ compensation system; the necessity of proper notice to provide our commission with subject matter jurisdiction over a claim; the humanitarian mission of our commission; and the normal deference we extend to the findings of trial commissioners. The claimant is the dependent widow of a deceased Connecticut state trooper, who filed a claim for benefits under § 31-306 C.G.S., which did not identify her name or that she was seeking survivorship benefits. The respondent has challenged subject matter jurisdiction for this claim asserting the notice was irredeemably defective, based on the holding of Kuehl v. Z-Loda Systems Engineering, 265 Conn. 525 (2003). The trial commissioner granted the respondent’s motion to dismiss. After reviewing the facts and the law herein, we conclude that notwithstanding the deference we must extend to the finder of fact, “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 666 (2006); and thus, we must uphold the appeal and vacate the order of dismissal.

A rather unusual factual scenario occasioned this dispute. On October 3, 1994 Trooper Robert Berry suffered a fatal heart attack at his home. On January 19, 1995 an attorney filed a claim utilizing the Form 30C the Commission used at that time.1 The claim form identified the injured worker as “Robert D. Berry, Deceased.” The form further identified the injury as an occupational illness, the injured body part as cardiovascular and described the illness as “[t]he deceased was assigned to tasks which were exceedingly stressful and which placed the deceased in danger.” The Commission form which was filled out contained no check box or line where a dependent was directed to identify himself or herself and identify that the claim was for dependent death benefits. The name of Trooper Berry’s spouse appears nowhere in the four corners of the document; she was not therefore identifiable as the actual claimant; nor was there any reference in the form of a claim under § 31-306 C.G.S.

We reviewed the history of this claim as it progressed through our system in Berry v. State/Department of Public Safety, 4866 CRB-4-04-9 (August 19, 2005) (hereafter Berry I). In Berry I we affirmed the trial commissioner’s decision to allow the claimant to present additional evidence responsive to the respondent’s eleventh hour motion to dismiss the claim for want of jurisdiction. Since the jurisdictional questions had to be addressed prior to any decision on the merits of the claim “the trial commissioner’s ruling in this matter is consistent with the notion that questions of jurisdiction must be fully resolved.” Id.

The trial commissioner held a formal hearing on this issue on February 21, 2006 and the matter was continued until July 12, 2006 for the filing of Proposed Findings of Facts and legal memorandum. On September 20, 2006 he issued a Finding of Dismissal of Jurisdiction. He concluded:

A. The Form 30C filed for “Robert Berry deceased” is insufficient notice for a claim for widow’s death benefits pursuant to C.G.S. 31-306.
B. Theresa Berry did not file a Form 30C Notice of Claim for C.G.S. 31-306 death benefits as required by C.G.S. 31-294c(a).
C. The claim for C.G.S. 31-306 benefits has to be dismissed for lack of jurisdiction.

The claimant filed a Motion to Correct seeking to substitute factual findings consistent with finding the respondent had actual notice of a claim for dependent death benefits. The trial commissioner did not rule on this motion, and the claimant has appealed.2

As an initial matter, we must determine whether we have jurisdiction to hear this appeal. The respondent has also challenged the appeal asserting it should be dismissed as late. They argue that the claimant’s Motion to Correct and Reasons for Appeal were untimely based on the issuance date of the trial commissioner’s findings on September 20, 2006. We reject this argument. There is no dispute that due to an administrative snafu the claimant did not receive notice of the decision until a fax was sent to her counsel on November 7, 2006. The claimant did respond in a timely fashion once notice had been received. We are persuaded that Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 587-589 (1999) requires us to hear an appeal when there is a “failure of notice beyond that party’s control” and the appeal is commenced in a timely manner upon the receipt of notice. Therefore, we deny the respondent’s Motion to Dismiss.

In considering this appeal we recognize that we must generally defer to the conclusions reached by the trial commissioner. This deference is not absolute, as we held in Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007);

On appeal we have a limited scope of review, as our standard of review is deferential to the finder of fact. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004).
This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing. As we held in Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007).
In Sullivan v. Madison-Police Department, 4893 CRB-3-04-12 (June 9, 2006) we explained that although we are deferential to the finding of facts reached at the trial level, our appellate review must consider whether the facts found are supported by competent evidence and are legally consistent with the ultimate outcome of the case.
“While this board cannot retry the facts of this case, it must review the sufficiency of the evidence against the legal standards required for granting an award. ‘The power and duty of determining the facts rests with the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.’ Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993).” Id.
We also noted in Sullivan that it is our responsibility as an appellate body to correct a commissioner’s misapplication of the law to the subordinate facts. See Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003).

The respondent has advanced the argument that the legal principles in Kuehl, supra, mandated the dismissal of this claim. The trial commissioner agreed with this argument. We can distinguish Kuehl from this case based on the facts and we believe that the trial commissioner, by relying on Kuehl as grounds for dismissal of the claim, incorrectly applied the law.

In Kuehl the husband and wife were principals of a family business and the husband suffered a compensable injury in a motor vehicle accident on June 26, 1991, to which a notice of claim was filed with the Commission and the employer. The husband and wife filed a tort action pertaining to the motor vehicle accident, to which the employer intervened to recover against its compensation obligations. The husband died in November 1992 and his spouse did not file a new notice for § 31-306 C.G.S. benefits or request a hearing for survivor’s benefits until 1998. She argued that the employer had actual notice of the claim for survivor’s benefits by virtue of intervening in the lawsuit because she was manager of the respondent employer. The Supreme Court disagreed with these arguments, finding instead that written notice under § 31-294c C.G.S. was “a prerequisite that conditions whether the commission has subject matter jurisdiction.” Id., 534.

The Supreme Court further concluded that while the respondent had actual notice of the decedent’s death, the form of the notice “contained no indication that the plaintiff was seeking or intended to seek survivor’s benefits. . . .” Id., 535. The Supreme Court refused to permit process in civil litigation to serve as the functional equivalent of official notice under Chapter 568. In construing the savings provision of § 31-294c C.G.S. the Supreme Court held “it does not excuse, however, the failure to file a notice of claim.” Id., 537 (Emphasis in original). As official notice under § 31-294c(a) C.G.S. was “an integral provision of our workers’ compensation scheme . . . .” Id., 539. The Supreme Court upheld the decision of the trial commissioner and this board that Mrs. Kuehl failed to engage the jurisdiction of our Commission.

In the present case, however, it is undisputed that official notice was filed with the Commission. The Kuehl case does not address the circumstances herein; where notice was filed with the Commission but may not have sufficiently informed the respondents as to the nature of the relief sought or the correct identity of the claimant.

Our review of the factual circumstances leads us to conclude that the circumstances herein are not congruent with the Kuehl case, and the trial commissioner erred in relying on that case. There is no dispute that Trooper Berry had not suffered an injury to which he sought benefits under Chapter 568 while he was alive; unlike the Kuehl case where the decedent had been injured long before his demise and had already filed a benefit claim.3 The instant claim stated it was filed for “Robert D. Berry, Deceased” and was filed shortly post-mortem. “[T]he availability of survivorship benefits under § 31-306 C.G.S. is inextricably linked to, and wholly dependent upon, the existence of a compensable injury or illness suffered by the employee.” Duni v. UTC/Pratt & Whitney, 239 Conn. 19, 25 (1996). The record reflects that this compensable injury did not exist until Trooper Berry’s fatal heart attack. A reasonable conclusion from reading this 30C form is that relief would be sought under § 31-306 C.G.S.;4 if for no other reason than Trooper Berry was no longer alive to receive the other forms of relief available under Chapter 568, such as temporary total or permanent partial disability benefits.5

We also believe it is relevant that this notice of claim was actual notice, and not constructive notice; and that it was received by the respondent well within the statutory time limits to commence a claim. Obviously merely constructive notice or late notice will deprive this Commission of jurisdiction; i.e. Chambers v. General Dynamics Corp/Electric Boat Division, 4952 CRB-8-05-6 (June 7, 2006), aff’d, 283 Conn. 840, 854-855 (2007). The notice in question may well have been misleading. However, the Commission itself cannot absolve itself of its own role in creating this confusion. Our board recognized this problem in its decision in Tardy v. Abington Constructors, Inc., 4105 CRB-2-99-8 (October 30, 2000), aff’d, 71 Conn. App. 140 (2002). We believe the facts in Tardy are more applicable to this case than the facts in Kuehl.

In Tardy the decedent had a pending claim for benefits under Chapter 568 at the time of his death and his dependent spouse subsequently filed for § 31-306 C.G.S. benefits. The respondent argued that they should be excused from the obligation to file a disclaimer for the § 31-306 C.G.S. claim because “the claimant’s Form 30C contained insufficient and misleading information.” That allegedly misleading information was “the presence of the decedent’s name and date of injury on the form, in addition to the name of the claimant and the date of the decedent’s death.” The respondent argued that this “undoubtedly led the employer’s representative to presume that the Form 30C concerned the continuation of an existing claim rather than the inception of a new action.” We rejected this reliance on “citing minor irregularities in a Notice of Claim as grounds for absolving a respondent from failing to file a Form 43.”

The Appellate Court upheld our decision in Tardy citing in part that the Form 30 C in use at the time of the Tardy claim (and in use at the time of the Berry claim) “was created for injured employees rather than for dependents pursuing death benefits. . . .” The court rejected the defendants argument that due to the limitations of the Commission’s form “even strict compliance with § 31-294c (a) would be insufficient” stating “strict compliance with a notice of claim is not required as long as it puts the employer on notice to make a timely investigation” Id., 149-151.6

We do not believe the holding in Kuehl limited the holding in Tardy that timely, actual notice to the Commission engages our jurisdiction provided it adequately places the employer on notice. As a factual matter, we find the notice filed in this case substantially similar to the notice for § 31-306 C.G.S. benefits we deemed sufficient in Tardy (lacking only the name of the claimant) and are not persuaded that the law on this issue has been materially changed in the past five years.

Therefore, our reading of the Kuehl and Tardy cases is that there must be either a complete absence of notice to warrant dismissal of a claim or granting preclusion; or notice which was so fundamentally deficient as to prejudice the other party.7 This is consistent with the plain language of § 31-294c(c) C.G.S. “[n]o defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice.”

In Hayden-LeBlanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3, 1373 CRD 2-92-1 (January 5, 1994), we outlined the “totality of the circumstances” test for determining the adequacy of a written notice of claim. Our review of the trial commissioner’s Finding and Dismissal for Lack of Jurisdiction demonstrates that while he held a formal hearing on this issue, it does not appear he weighed the testimony of the claimant or the witnesses deposed by her counsel as to whether the respondent had actual notice of the § 31-306 C.G.S. claim.8 Had his decision been based on such an evaluation of the facts we would be compelled to defer to such a determination Velez v. LSP Enterprises, Inc., d/b/a Domino’s Pizza, 5105 CRB-1-06-6 (September 26, 2007). To the contrary, the decision did not discuss the evidence presented at the hearing, and appears to be based solely on an interpretation of law we have concluded was in error.9 We cannot reverse a trial commissioner’s evaluation of the facts, but what we “do have is the power to correct misinterpretations of the law, and misapplications of the law to the subordinate facts found by the trier. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).” Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003). As a result, we believe the trial commissioner’s Finding and Dismissal for Lack of Jurisdiction must be vacated, and the matter remanded for proceedings on the merits.

Therefore, as we believe the circumstances herein rise to the standards delineated in Moutinho, supra, we sustain the appeal and vacate the dismissal.

Commissioners Amado J. Vargas and Peter C. Mlynarczyk concur in this opinion.

1 The Form states Rev. 11/10/94. BACK TO TEXT

2 We have previously held the failure of a trial commissioner to rule on a motion to correct is the functional equivalent of a denial of the motion. Spatafore v. Yale University, 14 Conn. Workers’ Comp. Rev. Op. 310, 312, 2011 CRB-3-94-4 (September 14, 1995), aff’d, 239 Conn. 408 (1996). BACK TO TEXT

3 The respondents argue that “because a survivor’s claim for benefits is derivative of the Claimant-Employee’s claim, it cannot be asserted absent an employee’s claim Duni v. UTC/Pratt & Whitney, 239 Conn. 19, 25 (1996).” Respondents’ Brief, p. 11. We reject this reasoning as applied to the facts herein. This theory would bar any claims for dependent benefits when the employee died of his or her injuries prior to filing a claim yielding the absurd result of barring claims after such events as crashes and explosions. Moreover, on its facts, Duni is incongruent with this case; as the “dispositive issue” in Duni was that the dependent spouse was barred from filing her own claim when her husband had already executed a full and final settlement of the claim. Id., 20. In this case, Trooper Berry had not filed a claim prior to his demise. BACK TO TEXT

4 The claimant submitted testimony from Teri Waitkus, an adjuster for the respondent’s claim administrator, and Gail Zaepful-Melanson, a personnel officer for the Department of Public Safety. Ms. Zaepful-Melanson testified specifically she had worked on calculating the death benefits the surviving spouse would be entitled to were the compensation claim to be approved. Claimant’s Exhibit B, p. 29-31. BACK TO TEXT

5 Respondent argues Trooper Berry, upon his demise, qualified for benefits under § 29-4a C.G.S. and was granted such benefits. We do not understand how this argues in their favor on the issue of jurisdiction before this Commission since the Form 30C in dispute could not have been utilized to obtain such benefits. Whether the Berry estate made an “election of remedies” barring an award under Chapter 568 does not involve whether this Commission had initial subject matter jurisdiction and is a matter which should be considered on the merits. BACK TO TEXT

6 Disputes of this nature will hopefully be a moot point in the future as the Commission has promulgated a new Form 30D for claims seeking benefits under § 31-306 C.G.S. BACK TO TEXT

7 For examples of claims which were deemed sufficient despite other alleged notice deficiencies which were said to deprive the Commission of jurisdiction, see Nalband v. Davidson Company, Inc., 4944 CRB-8-05-5 (May 19, 2006). We also note that the Supreme Court has adopted a more relaxed approach to notice under the highway defect statute. See Salemme v. Seymour, 262 Conn. 787 (2003). BACK TO TEXT

8 See footnote 3. BACK TO TEXT

9 The trial commissioner did not rule on the claimant’s Motion to Correct dated November 22, 2006. In light of our analysis of the Kuehl case, we believe it should have been granted. The facts sought to be admitted were undisputed and material to the issue that the respondent had actual notice as to the nature of the claim and were not prejudiced by the form of the notice. See Rizzo v. Stanley Works, 5106 CRB-6-06-6 (November 21, 2007). (Motion to Correct upheld when it conformed Finding and Award to evidence on the record.) BACK TO TEXT

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