CASE NO. 5584 CRB-7-10-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 28, 2011
STATE OF CONNECTICUT/JUDICIAL BRANCH
GAB ROBINS NORTH AMERICA
The claimant was represented by Gregory S. Kimmel, Esq., Kimmel & Kimmel, LLC, 9 Morgan Avenue, P.O. Box 2013, Norwalk, CT 06852-2013.
The respondent was represented by Francis C. Vignati, Jr., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review1 from the July 28, 2010 Finding and Dismissal of the Commissioner acting for the Seventh District was heard May 27, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter is appealing from a Finding and Dismissal based on the trial commissioner’s determination that he failed to engage this Commission’s jurisdiction during the statutory claim period. We find the trial commissioner made a factual determination that what the claimant filed within a one year period of the date of injury did not sufficiently notify the respondent that a claim for benefits would be sought. Our law is clear that unless a claim is filed within the one year period under § 31-294c C.G.S. or an exception to that time limitation is established by the claimant the Commission lacks jurisdiction over the injury. We find no error and affirm the Finding and Dismissal. The appeal is dismissed.
The trial commissioner reached the following Findings of Fact. She found that on January 10, 2008 the claimant was a Judicial Marshal for the State of Connecticut. On that date the claimant filled out a First Report of Injury (“FRI”) claiming to have suffered injury to his low back and right knee. The report was signed by Richard T. Rilling from the respondent’s Human Resource Department. The trial commissioner found that the claimant subsequently submitted numerous additional forms which the claimant asserted pertained to the incident in question.2 The trial commissioner reviewed the various forms and found that they were offered as evidence to show the respondent was “given notice on actually the date of the injury, being January 10, 2008, of a potential claim by the claimant in this matter.”. Findings, ¶ 20. The commissioner noted none of these forms were sent from an attorney or were accompanied by a letter from an attorney. The trial commissioner further found that all treatment the claimant had received for his injuries was paid for by his group health insurance carrier. The commissioner also found the claimant had not requested a hearing before the Commission within one year of his date of injury. The claimant signed a Form 30C seeking benefits on February 24, 2009, however, it was not filed with the Commission until March 2, 2009, more than one year after his January 10, 2008 date of injury.
The trial commissioner concluded based on these facts that notice of a “potential” claim is not notice of an actual claim. Therefore, the claim was time-barred and the Commission lacked jurisdiction over the claimant’s January 10, 2008 specific date of injury. The claimant did not file a Motion to Correct, but proceeded to appeal the Finding and Dismissal. His position is that as a matter of law the trial commissioner erred in determining the various documents submitted did not constitute effective notice he was seeking compensation under the Workers’ Compensation Act.
The trial commissioner in this matter was obligated to apply § 31-294c (a) C.G.S. to the facts on the record. Pursuant to § 1-2z C.G.S., she was bound to apply the “plain meaning” of this statute. The statute reads as follows:
(a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. An employee of the state shall send a copy of the notice to the Commissioner of Administrative Services. As used in this section, “manifestation of a symptom” means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed.
From reviewing the various exhibits presented by the claimant in this matter, it does appear that the employer was advised as to the date and the place of the alleged accident and the nature of the injury. None of these documents, however, constitute an affirmative “claim” for compensation under Chapter 568. “[T]he written notice intended is one which will reasonably inform the employer that the employee is claiming or proposes to claim compensation under the Act.”. Pernaccchio v. New Haven, 63 Conn. App. 570, 575 (2001). The claimant had one year from the date of injury to place his employer on notice that he was claiming the injury as compensable. The trial commissioner concluded his various documentary filings did not do so.3 This is a factual determination and in the absence of a Motion to Correct, we must give this determination conclusive effect. See Admin. Reg. § 31-301-4 and Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008). We must therefore determine if the trial commissioner properly applied the law.
We find this matter congruent to Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 1713 CRB-4-93-4 (April 17, 1995). In Otero the claimant submitted numerous accident reports to his employer, but never formally submitted a Form 30C seeking compensation until after the statutory claim period had elapsed. The Compensation Review Board reversed the trial commissioner’s decision that the claimant had effectively put the respondent on notice for the following reasons.
Under § 31-294, the filing of notice is excused only “if (1) a hearing procedure is seasonably set in motion, (2) a voluntary agreement is reached and submitted by the parties or (3) medical or surgical care for the injury is supplied by the employer within the applicable time.”. DeLeon v. Jacob Bros., Inc., 38 Conn. Sup. 331, 336 (1981). Those exceptions are inapplicable here, as none of those conditions were satisfied in this case. Although substantial compliance with the notice content requirements of § 31-294 has been held adequate to satisfy the statute, see Hayden-Leblanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3, 4, 1373 CRD 2-92-1 (Jan. 5, 1994), the claimant in this case did not give sufficient notice that he was considering filing a workers’ compensation claim by merely reporting his injury to his employer. See Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276, 280 (1988). Neither the claimant’s employer nor the Workers’ Compensation Commission thus had timely notice of the existence of the claimant’s claim as required by § 31-294. Accordingly, this commission lacks subject matter jurisdiction to proceed any further. See Jarrett v. Clairol, Inc., 6 Conn. Workers’ Comp. Rev. Op. 5, 6, 540 CRD-7-86 (Aug. 16, 1988).
We also find the case of Horvath v. State/Department of Correction, 5008 CRB-8-05-10 (September 13, 2006) relevant to this discussion. In Horvath the claimant also submitted an accident report for an injury, but did not file a timely Form 30C. He argued however, that his injury fell into the “medical care exception” to the statute. We rejected that argument based on the facts on the record.
Since no formal notice of claim was filed for the alleged right shoulder injury, we must determine whether the medical care exception exists.
The trial commissioner determined that no medical care for the right shoulder injury had been furnished within a year of date of injury. Findings, ¶ 26. “Whether a claimant was ‘furnished medical care’ pursuant to § 31-294c(c) is a factual determination.” Distassio v. HP Hood, Inc., 4592 CRB-4-02-11 (May 5, 2004). Our role on appeal is to ascertain if this finding is “clearly erroneous.”. Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665-666 (2006).
A review of the claimant’s exhibits provides no evidence right shoulder was treated within one year accident; instead reflecting treatment in 1997, over from date injury. Therefore, we are bound by our holding Teague v. Repko Roofing, 4920 CRB-7-05-2 (March 1, 2006) to uphold the dismissal. Similar to Teague, the claimant in this case, “has the burden of proving the medical care exception to the statute” and failed to convince the trial commissioner. The evidence before the trial commissioner does not support a finding that medical care was rendered for the right shoulder injury within the statutory period required to establish jurisdiction over the injury.
As an example of where the “medical care exception”under § 31-294 (c) C.G.S. rendered a claim compensable in the absence of a timely Form 30C we look to Pernacchio, supra. In Pernacchio, the claimant had filed a first report of injury and had been transported by ambulance to the hospital by his employer. The Appellate Court found this was sufficient to constitute compliance with precedent in Gesmundo v. Bush, 133 Conn. 607 (1947) that furnishing medical care to an employee suffices for notice purposes. Id., 576-578. On the other hand, we have held that if a claimant treats via a group health insurer and if “the claimant was using his employer’s medical facilities as a general health care provider through 1983, regardless of the origin of his ailments,” the medical care exception to the statute was not met. Culver v. Cyro Industries, 4444 CRB-7-01-10 (February 21, 2003). The trial commissioner concluded the treatment the claimant received in this matter was through his group health carrier. The precedent in Culver argues against applying the medical care exception in this case.
Recently, in Wikander v. Asbury Automotive Group, et al., 5586 CRB-4-10-09 (September 8, 2011) we examined the effect of the failure of a party to file timely notice before our tribunal. We cited Chambers v. General Dynamics Corp./Electric Boat Division, 4952 CRB-8-05-6 ( June 7, 2006), aff’d, 283 Conn. 840 (2007) and Kuehl v. Z-Loda Systems Engineering, 265 Conn. 525 (2003) for the proposition that constructive notice is not sufficient to engage the jurisdiction of this Commission when a party does not adhere to the requirements of § 31-294c C.G.S. On the other hand in Mehan v. Stamford, 5389 CRB-7-08-10 (October 14, 2009), aff’d, 127 Conn. App. 619 (2011), cert. denied, 301 Conn. 911 (2011) we upheld jurisdiction when a claimant served a timely but incomplete Form 30C on his superior officer, who then completed the form. We found such a circumstance similar to Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007) where a timely Form 30C was claimed to be inaccurate. “We find that based on the ?totality of the circumstances’ test promulgated in Hayden-Leblanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3, 4, 1373 CRD 2-92-1 (January 5, 1994), the claim was sufficient.” Mehan, supra.
When a claimant does not submit a Form 30C within the one year statutory period, we must defer to the factual conclusions of the trial commissioner as to whether the test in Hayden-LeBlanc, supra., was met. We do not find the trial commissioner’s factual determinations were unreasonable or lacked a proper evidentiary foundation. Sullivan v. Madison, 4893 CRB-3-04-12 (June 9, 2006). We find her legal conclusions consistent with precedent. Therefore, we find no error and affirm the Finding and Dismissal. The appeal is dismissed.
Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.
1 We note that a postponement and an extension of time were granted during the pendency of this appeal. BACK TO TEXT
2 The trial commissioner enumerated these forms as follows in the Finding and Dismissal.
“4. The claimant was a Judicial Marshal for the State of Connecticut on January 10, 2008 when he filled out a first Report of Injury (“FRI”) claiming to have suffered injury to his low back and right knee. (Ex. “A”). The report is signed by Richard T. Rilling (“Rilling”) from the respondent’s Human Resource Department.
5. On January 17, 2008, the claimant filled out a “DAS Concurrent Employment Third-Party Liability Form”. (Ex. “C”).
6. On January 22, 2008, Rilling signed a “JUD Supervisor’s Accident Investigation Report 207-1”. (Ex. “B”).
7. Exhibit “D” is a GAB Robins “Worker Status Report” with the claimant’s name, address and date of injury filled out. It was never completed by any doctor and does not appear to have been filed with any entity.
8. Exhibit “E” is a document issued by the Office of the State of Comptroller and titled “Request for Use of Accrued Leave with Workers’ Compensation (Employee’s Choice)”. It is filled out and dated January 11, 2008, however, it is unclear from the face of the document whether this document was ever filed with either the Comptroller’s Office or the Judicial Branch.
9. Exhibit “F” is the “Judicial Marshal Services Incident Report” signed by Clyde Fountain as a “reporting marshal” and Rilling as a “CJM/SJM”.
10. Exhibit “G” is a “Use of Force” report prepared by Clyde Fountain.
11. Exhibit “H” is a “Judicial Marshal Services Supplemental Report” prepared by the claimant and dated January 17, 2008.
12. Exhibit “I” is a second “Use of Force Report” filled out by the claimant and dated February 11, 2008. It is also signed by Rilling.
13. Exhibit “J” is a second “Judicial Marshal Services Supplemental Report” dated January 22, 2008 and signed by Amador Nunez, another marshal involved in the January 10, 2008 incident.
14. Exhibit “K” is a third “Use of Force Report” prepared by Marshal Nunez and dated January 22, 2008.
15. Exhibit “L” is a third “Judicial Marshal Services Supplemental Report” dated January 22, 2008 and filled out by Rilling.
16. Exhibit “M” is a “Judical Branch Response To Employee Request For Leave Of Absence Under The Federal And State Family Medical Leave Acts (FMLA) form. It grants the claimant “Full-Time Leave effective 11/5/08 through 1/2/09 for up to 480 hours per year.” Said form does not reference the claimant’s January 10, 2008 date of injury or in any way detail the circumstances out of which the request arose.
17. Exhibit “N” is a GAB Robins letter to the claimant dated February 11, 2009, referencing a date of injury of January 1, 2009, not the January 22, 2008 date of injury which is the subject of this claim.
18. Exhibit “O” is an undated State of Connecticut Judicial Branch/Administrative Services Division Human Resource Management Unit document entitled “Supervisor Procedures for Reporting an Injury/Reoccurrence”. No testimony accompanied the admission of this document.” BACK TO TEXT
3 The trial commissioner noted that various documents alleging to constitute “notice” such as the Family and Medical Leave Act request response (Exhibit M) failed to reference the date of injury, and it would require conjecture on the trier’s part as to whether the claimant’s sole reason to seek FMLA leave was due to a workplace injury. BACK TO TEXT
4 See also Gaffney v. Stamford, 15 Conn. Workers’ Comp. Rev. Op. 257, 2219 CRB-7-94-11 (May 24, 1996). BACK TO TEXT