Crute v. Arthur Fletcher Fuel Oil Company

The claimant was represented by Lewis C. Maruzo, Esq., Horwitz, Maruzo and Benson, P.C., 74 West Main Street, P.O. Drawer 940, Norwich, CT 06360.

The respondents were represented by Jason M. Dodge, Esq., Margaret E. Corrigan, Esq. and James L. Pomeranz, Esq., Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The Petition for Review in docket number 1390 CRB-2-92-3 from the February 28, 1992 Ruling on Motion to Preclude Defenses of the Commissioner for the Second District was heard September 25, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Frank J. Verrilli and James J. Metro.

The Petition for Review in docket number 1685 CRB-2-93-3 from the March 17, 1993 Finding and Award and the March 24, 1993 Corrected Finding and Award of the Commissioner fort the Second District was consolidated with the first appeal and decided on the basis of papers submitted and argument heard in the first appeal by a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Frank J. Verrilli and James J. Metro.

OPINION

JESSE FRANKL, CHAIRMAN. The issue presented by these consolidated appeals1 is whether a Form 43-67 which specifically contests only the claimant’s “carpal tunnel syndrome” permits a contest of liability regarding other injuries specifically set forth in the claimant’s Notice of Claim for Compensation (Form 30C). The trial commissioner granted the claimant’s motion to preclude as to those other injuries and ordered the respondents to accept liability for those other injuries. We affirm the decision of the trial commissioner.

The claimant’s Notice of Claim (Form 30C) alleged the following injuries as a result of repetitive trauma during the course of her employment from approximately October 26, 1987 to March 9, 1990: “carpal tunnel syndrome in both left and right wrists, cubital tunnel syndrome in both left and right elbows, injury to her cervical spine and injury to the nerves, muscles, ligaments, blood vessels, tendons and other soft tissues and skeletal structures of both arms and hands.” The respondents had previously filed a Notice of Intention to Contest Liability (Form 43-67) which indicated that the employer was contesting its liability to pay compensation on the following ground: “The claimant’s carpal tunnel syndrome did not arise out of or within the course of employment with Arthur Fletcher Fuel Oil Co. (pending opinion on medical causation and investigation [)].” A subsequent Form 43-67, which addresses the injuries alleged in the claimant’s Form 30C but not mentioned in the respondents’ initial Form 43-672, was not timely filed in relation to the filing of the Form 30C.

General Statutes (Rev. to 1989) Sec. 31-297(b), as it existed on the date of the alleged injury, provided in pertinent part: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commission, on or before the [twenty-eighth] day after he has received a written notice of claim, a notice . . . stating . . . the specific grounds on which the right to compensation is contested . . . If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury . . . and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.” (Emphasis added.) The purpose of the timely disclaimer and preclusion requirements of our Workers’ Compensation Act is to “ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested.” Menzies v. Fisher, 165 Conn. 338, 343 (1973).

In Sartirana v. Town of Winchester, 3 Conn. Workers’ Comp. Rev. Op. 67, 68, 368 CRD-5-84 (1986), we recognized that, under Sec. 31-297(b), a respondent “is limited to defend only on the specific grounds listed on its contestment notice” and granted the claimant’s motion to preclude defenses “to the extent that the respondent Town may only raise the defense included in its contestment notice.” That conclusion, which gives effect to the disclaimer’s purpose to diminish delays and narrow the legal issues which are being contested, is fully applicable to the facts of this case.

Here, the respondents filed a “premature” disclaimer of liability. Although the respondents’ premature disclaimer was effective; see, e.g., Dibenedetto v. State of Connecticut, 9 Conn. Workers’ Comp. Rev. Op. 1, 2-3, 862 CRD-6-89-5 (1991); it permitted them to defend against the claim only on the specific ground set forth in the disclaimer. Sartirana v. Town of Winchester, supra. For purposes of Sec. 31-297(b), the subsequently filed, and more detailed, disclaimer was untimely and could not cure any deficiencies in the prior, timely notice. See Menzies v. Fisher, supra, 346-47; Paladino v. Schaller Subaru, Inc., 5 Conn. Workers’ Comp. Rev. Op. 87 522 CRD-6-86 (1988).

The Notice of Claim listed numerous injuries which were alleged to be causally-related to the employment. The respondents’ first, and only valid, disclaimer specifically asserted that only one of those several alleged injuries (i.e., carpal tunnel syndrome in both wrists) was not related to the claimant’s employment with the respondent-employer, that is, that it did not arise out of or within the course of that employment. The respondents, in their brief, argue that “it is reasonable to assume that this language [in the valid disclaimer regarding the carpal tunnel syndrome] provided notice to the claimant that the respondents were contesting liability for the other alleged injuries based upon the same grounds — the injuries did not arise out of an in the course of the claimant’s employment.” Yet, our Supreme Court has made clear that “the sufficiency of the notice under the statute must be judged not by the technical meaning which a court might attach to it, nor by a meaning the defendant subsequently discloses at the hearing, but rather by the criterion of whether it reveals to the claimant specific substantive grounds for the contest.” Menzies v. Fisher, supra, 345. A comparison of the notice of claim and the disclaimer makes clear that the disclaimer contests causation only as it relates to the carpal tunnel syndrome. Certainly, this would not be an unreasonable position for a respondent to take if its investigation revealed that some, but not all, of the claimed injuries arose out of and in the course of employment. Equally certain is the fact that if the respondents intended to contest the issue of causation as it related to all of the claimant’s injuries, they could have easily done so.3 It was up to the respondents to frame the precise legal issues which were in dispute through their disclaimer; id., 343-46; and their failure to do so precluded them from denying the compensability of the claimant’s other injuries. Sartirana v. Town of Winchester, supra.

Accordingly, the trial commissioner properly granted the motion to preclude to the extent that he limited the respondents to contesting only whether the claimant’s carpal tunnel syndrome arose out of an in the course of the claimant’s employment. We, therefore, affirm the trial commissioner and deny the respondents’ appeals.

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 the appeal.

Commissioners Frank J. Verrilli and James J. Metro concur.

1 In his February 28, 1992 Finding and Award, the Second District Commissioner granted the claimant’s Motion to Preclude. The respondents filed a timely Petition for Review challenging that decision. That appeal bears docket number 1390 CRB-2-92-3.

Thereafter, while that appeal was pending, the trial commissioner held further hearings to determine the period of temporary total disability and the amount of permanent partial disability benefits. The commissioner’s award, issued on March 17, 1993, and corrected on March 24, 1993, is the subject of a second Petition for Review. That appeal bears docket number 1685 CRB-2-93-3.

Because the two appeals derive from the same factual circumstances and seek to challenge the same ruling by the trial commissioner with respect to the Motion to Preclude, the respondents requested that this Board consolidate the appeals for the sake of judicial economy and administrative efficiency. Furthermore, by letter dated September 28, 1993, the parties indicated: “The only issues in contention [in the second appeal] are the issues which were the subject of the first appeal. The second appeal was taken for the purpose of obtaining a final judgment to satisfy the mandate of the Appellate Court in the event that a further appeal is [sought] by either party. Therefore, there are no new issues to be briefed or argued as a result of the second appeal.”

The motion to consolidate the appeals was granted on May 12, 1993. We now render our decision with respect to these consolidated appeals. BACK TO TEXT

2 The second Form 43-67 indicated that liability was contested on the following grounds: “Clmts symptoms of her right arm, right side of her neck. (sic) her letf (sic) arm and left wrist are unrelated to her employment (sic) with Arthur Fletcher Fuel Oil and are unrelated to her right wrist carpel tummel (sic) syndrome, (pending opinion on medical causation [)].” BACK TO TEXT

3 See, e.g. Marchesseault v. J. P. Guerrera, 9 Conn. Workers Comp. Rev. Op. 133, 982 CRD-5-90-2 (1991) (Disclaimer stated, “injury did not occur in or out of the course of employment”). BACK TO TEXT