Landrette v. City of Bristol

CASE NO. 1279 CRD-6-91-8

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

AUGUST 19, 1993

JOSEPH LANDRETTE

CLAIMANT-APPELLEE

v.

CITY OF BRISTOL

EMPLOYER

and

TRAVELERS INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by David Zipfel, Esq., Serignese, Petrone and Zipfel, P.O. Box 8296, East Hartford, CT 06108.

The respondents were represented by Amado J. Vargas, Esq., Janine D’Angelo-Bracken, Esq. and Robert Cullen, Esq. of the Law Offices of Robert S. Cullen, P.O. Box 9802, New Haven, CT 06536-0802.

This Petition for Review from the August 8, 1991 Finding and Award of the Commissioner for the Sixth District was heard June 26, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Gerald Kolinsky and James J. Metro.

OPINION

JESSE FRANKL, CHAIRMAN. The respondents have petitioned for review from the August 8, 1991 Finding and Award in which the claimant was awarded benefits due to an injury to his mouth occurring July 31, 1987. The respondents contend that the claimant failed to comply with Sec. 31-299’s requirements as to the statute of limitations as the claimant failed to give written notice of the injury to his mouth within one (1) year of the date of the accident.

The pertinent facts are as follows. The claimant was a police officer for the respondent municipality. On July 31, 1987 while on routine patrol, the claimant was involved in an altercation with a suspect. On July 31, 1987 the claimant gave notice of the incident to the respondent. See Claimant’s Exhibit I. The Incident Report (Claimant’s Exhibit I) indicates that the claimant fell down a flight of stairs and hurt his right ankle. The claimant testified that he was treated at the Emergency Room for both his ankle injury and his mouth injury. The claimant also testified that he orally notified his employer of his claim for dental/mouth injuries.

The trial commissioner concluded that the claimant’s mouth injury alleged to have occurred on July 31, 1987 was compensable. The respondents took the instant appeal and challenge the trial commissioner’s factual findings and conclusion. The respondents argue that while the claimant contends that he orally notified his employer about his mouth injury and its relationship to his July 31, 1987 altercation, the claimant was unable to recall specifically when he notified his employer. Mr. Steve Rybczyk, Personnel Manager for the respondent employer stated that the first positive recollection he had of learning of the causal relationship between the claimant’s July 31, 1987 injury and his mouth and dental injury was in late 1988. See TR January 14, 1991 at 54.

The respondents contend that the claimant did not notify the respondents of the dental injury until more than a year had passed after the July 31, 1987 altercation. They contend that the claimant admits he never gave written notice of claim as to his dental injury and that his “oral” amendment to the written notice of claim which was given occurred more than a year after the altercation.

The respondents seek to frame the legal issue before us in terms of the notice requirements and the Workers’ Compensation Act’s statute of limitations. Sec 31-294 provides in pertinent part:

Any employee who has sustained an injury in the course of his employment shall forthwith notify his employer, or some person representing his employer, of such injury; and, on his failure to give such notice, the commissioner may reduce the award of compensation proportionately to any prejudice which he finds the employer has sustained by reason of such failure; but the burden of proof with respect to such prejudice shall rest upon the employer. 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... Such notice 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 therefrom, or the date of the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. If there has been a hearing or a written request for a hearing or an assignment for a hearing within said one-year period from the date of the accident or within said three-year period from the first manifestation of a symptom of the occupational disease, as defined herein as the case may be, or if a voluntary agreement has been submitted within the applicable period, or if within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as hereafter provided in this section no want of such notice of claim shall be a bar to the maintenence of proceedings and in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning such personal injury and was prejudiced by the defect or inaccuracy of such notice....(emphasis ours)

To the best of our knowledge, neither this body nor our own appellate courts have ever barred a claim where a written notice of claim was filed but the written notice failed to identify an injury or disability for which compensation was later sought. For example in Hebert v. New Departure Hyatt Bearings, 4 Conn. Workers’ Comp. Rev. Op. 94, 300 CRD-6-84 (1987) no error 14 Conn. App. 819 (1988), this tribunal considered a claim for benefits due to a herniated disc at the C5-6 level which was surgically excised May 19, 1983. The claimant in Hebert was found to have sustained a compensable back injury July 23, 1980 for which a Voluntary Agreement was approved July 30, 1980. On June 4, 1981 the claimant underwent surgery for a herniated disc at the L1-2 level. The trial commissioner granted the claimant’s benefits relating to the May 19, 1983 cervical surgery and the respondent appealed on the basis that the claimant failed to give proper notice of the cervical injury and disputed purported causal relationship to the original July 23, 1980 injury.

The Compensation Review Division held that as the trial commissioner concluded that the cervical surgery was causally related to the original injury there was no need for any additional notice. “Our ruling on the first issue [whether it was error to hold that the cervical surgery was causally related to the original injury] is also dispositive of the second. Once it is held that the cervical surgery occurred in a direct chain of causation from the July 23, 1980 injury, there was no cause for any further notice as that original injury had been accepted...” Hebert, 4 Conn. Workers’ Comp. Rev. Op. at 95.

We think our ruling in Hebert and the Appellate Court’s affirmation of our decision is dispositive of the issue presented in the instant appeal. That is, once the trial commissioner determined that the mouth injury was causally related to a work injury the need for any further notice of claim was unnecessary.

In the instant case, the trial commissioner found inter alia, the claimant gave notice of the July 31, 1987 injury and the claimant suffered a mouth and dental injury relating to that July 31, 1987. Applying Hebert to these facts we are compelled to conclude that the trial commissioner’s August 8, 1991 Finding and Award be affirmed.

Additionally pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of this appeal.

We therefore affirm the August 8, 1991 Finding and Award.

Commissioner James J. Metro concurs.