CASE NO. 1423 CRB-4-92-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 6, 1994
LIBERTY MUTUAL INSURANCE COMPANY
The claimant was represented by George P. D'Amico, Esq., Miller & Rosnick, 815 Main Street, Suite 202, Bridgeport, CT 06604.
The respondents were represented by Scott Wilson Williams, Esq. and Carolyn Signorelli, Esq., Maher & Williams, P.O. Box 269, Bridgeport, CT 06601.
This Petition for Review from the May 8, 1992 Finding and Award of the Commissioner At Large acting for the Fourth District was heard March 26, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Angelo L. dos Santos.
JESSE FRANKL, CHAIRMAN. The respondents have petitioned for review from the May 8, 1992 decision of the Commissioner at Large acting for the Fourth District granting the claimant’s motion to preclude.
This appeal presents, yet again, the question of the proper application of Section 9 of Public Act 90-1161, which amended General Statutes Sec. 31-297(b) so that the preclusion of defenses and the accompanying irrebuttable presumption of liability provided for in that statute would only result if a warning about the preclusive effect of Sec. 31-297(b) has been included in the claimant’s notice of claim served on the employer. In DeAlmeida v. M.C.M. Stamping Corporation, 10 Conn. Workers’ Comp. Rev. Op. 21, 1097 CRD-7-90-8, 1139 CRD-90-11 (1991), aff’d, 29 Conn. App. 441 (1992), and Vachon v. General Dynamics/Electric Boat Division, 10 Conn. Workers’ Comp. Rev. Op. 53, 1137 CRD-2-90-11, rev’d on other grounds, 29 Conn. App. 654 (1992), cert. denied, 224 Conn. 927 (1993), we refused to give retroactive application to the 1990 amendment because the statutory change affected a substantive right. In DeAlmeida and Vachon, both the injury and the service of the claimant occurred before the effective date of Section 9 of Public Act 90-116. This appeal, however, presents the question of whether the Section 9 warning requirement applies where the date of injury occurred before October 1, 1990 (the effective date of Section 9) but the claimant’s notice was not served on the employer until after the effective date of Section 9. Because we conclude that Section 9 is not applicable where the injury preceded October 1, 1990, we uphold the trial commissioner’s decision to grant the claimant’s motion to preclude.
In its DeAlmeida decision, the Appellate Court discussed the applicability of Section 9 in terms of both the date of injury and the date of the claim but seemed to give primary consideration to the significance of the date of injury: “If the amendment were applied retroactively, the [claimant], by virtue of failing to have performed an act not commanded by the statute at the time of his injury or on the date of his claim, would be deprived of the benefit of preclusion to which he was entitled on both the date of his injury and the date on which he gave notice. Thus, the amendment actually brings about a change in the substantive rights enjoyed by the plaintiff at the time of his injury.” (Emphasis added.) DeAlmeida v. M.C.M. Stamping Corporation, supra, 29 Conn. App. at 451. The DeAlmeida court further noted the settled principle “that workers’ compensation legislation affecting the rights and obligations between the parties . . . apply only to those injured after the adoption of the legislation and not those previously injured” and concluded that P.A. 90-116, Sec. 9 “in no way shows that the Legislature wanted to depart from the date of the injury rule.” Id. Accordingly, the warning now required by Section 9 constitutes a new obligation not present at the time of the claimant’s injury, and it cannot be applied retroactively to affect the claimant in this case. See DeAlmeida v. M.C.M. Stamping Corporation, 10 Conn. Workers’ Comp. Rev. Op. at 23; General Statutes Sec. 55-3; see also Gormley v. State Employees Retirement Commission, 216 Conn. 523 (1990); Holly Hill Holdings v. Lowman, 30 Conn. App. 204, 212-14, rev’d on other grounds, 226 Conn. 748 (1993).
Because the claimant served a proper notice of claim and the employer failed to timely file its notice of intention to contest liability, the trial commissioner properly granted the claimant’s motion to preclude.
We, therefore, affirm the trial commissioner and deny the appeal.
Commissioners George A. Waldron and Angelo L. dos Santos concur.
1 Public Act 90-116 Sec. 9 provides in pertinent part:
(b) Except as provided in subsection (c) of this section, whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. 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 or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability, PROVIDED THE EMPLOYER SHALL NOT BE CONCLUSIVELY PRESUMED TO HAVE ACCEPTED COMPENSABILITY WHEN THE WRITTEN NOTICE OF CLAIM HAS NOT BEEN PROPERLY SERVED IN ACCORDANCE WITH SECTION 31-321 OR WHEN THE WRITTEN NOTICE OF CLAIM FAILS TO INCLUDE A WARNING THAT THE EMPLOYER SHALL BE PRECLUDED FROM CONTESTING LIABILITY UNLESS A NOTICE CONTESTING LIABILITY IS FILED WITHIN THE TIME PERIOD SET FORTH IN THIS SECTION. BACK TO TEXT