Denicola v. Stop & Shop Companies, Inc.

CASE NO. 1919 CRB-3-93-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 6, 1994

JOHN DENICOLA, JR.

CLAIMANT-APPELLEE

v.

STOP & SHOP COMPANIES, INC.

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Richard L. Jacobs, Esq., Jacobs, Jacobs & Shannon, 265 Orange Street, New Haven, CT 06510.

The respondents were represented by Howard Levine, Esq., (formerly of) and Andrew H. Sharp, Esq., Morrison, Mahoney & Miller, 100 Pearl Street, Hartford, CT 06103.

This Petition for Review from the November 29, 1993 Finding of Motion to Preclude of the Commissioner acting for the Third District was heard April 29, 1984 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has appealed from the Commissioner Acting for the Third District’s November 29, 1993 Finding of Motion to Preclude. In that Finding the commissioner granted the claimant’s Motion to Preclude. The respondent took the instant appeal. The pertinent facts are as follows.

The claimant was employed by the respondent in their pharmacy located in Hamden, CT. On September 17, 1990 the claimant sent a Form 30-C notice of claim to both the Stop & Shop Pharmacy in Hamden, CT and the Stop & Shop supermarket headquarters in Quincy, MA. The Form 30-C asserted that the claimant sustained a myocardial infarction on November 18, 1989 and that the myocardial infarction arose out of and in the course of his employment. The commissioner found that the respondent did not disclaim its liability within 28 days of the receipt of claimant’s Form 30-C and therefore concluded that the respondent was precluded from asserting defenses to the claim due to its failure to comply with the time requirements set out in Sec. 31-297(b) for notice of contest to liability.

The respondent took the instant appeal and presents the following issues for review: (1) whether the trier erred as a matter of law in granting the claimant’s Motion to Preclude where the notice of claim failed to identify the claimant’s home as the place of the injury and (2) whether the trier erred in granting the Motion to Preclude where the notices of claim were not mailed to the respondent’s corporate insurance department.

We first consider whether the trier erred as a matter of law in granting the Motion to Preclude where the notice of claim failed to state that the myocardial infarction occurred in the claimant’s home. The respondent argues that the failure to identify the claimant’s home as the place of injury does not comply with the technical requirements of Sec. 31-294 as to notice and thus, should not trigger the preclusive effects of Sec. 31-297(b). See e.g., Fuller v. Central Paving Co., 5 Conn. Worker’s Comp. Rev. Op. 92, 665 CRD-7-87 (1988). We disagree.

Firstly, we note that the Form 30-C Notice of Claim states in pertinent part, “Notice is hereby given that the undersigned, who while in the employ of Stop & Shop Pharmacy at Hamden on the 18th day of November 1989 sustained injuries arising out of and in the course of his employment ....” Sec. 31-294 C.G.S. provides, “[N]otice. . . 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. . . and the name and address of the employee and of the person in whose interest compensation is claimed.”

The Form 30-C appears to indicate that the claimant sustained his injury in Hamden, CT. Additionally, we note that it appears that the Form 30-C was accompanied by a copy of a letter to the commissioner which identified “Hamden” as the place of injury. See Claimant’s Exhibits E and F.

We think that claimant’s notices satisfied a “strict” interpretation and reading of the technical requirement of Sec. 31-294 as to notice. The “place” of claimant’s injury was provided as Hamden. When faced with a question as to how to construe a particular term in a statute we are to refer to the use of the term in accordance with commonly approved usage of the language. Sec. 1-1. C.G.S. “Place” is defined in Black’s Law Dictionary as follows:

The word is a very indefinite term. It is applied to any locality, limited by boundaries, however large or however small. It may be used to designate a country, state, county, town, or a very small portion of a town. The extent of the locality designated by it must generally be determined by the connection in which it is used. In its primary and most general sense means locality, situation, or site and it is also used to designate an occupied situation or building.

BLACK’s LAW DICTIONARY, 5th ed. (1979) at 1034.

Applying the above definition to “place” we think that the reference to “Hamden” satisfied the prerequisites for notice under Sec. 31-294. Furthermore, our above analysis is probably unnecessary given our Supreme Court’s comments in Pereira v. State, 228 Conn. 535, 542-43, note 8 (1994). The Supreme Court in Pereira criticized this tribunal’s prior rulings which held that before a claimant could prevail on a Motion to Preclude all the technical requirements of Sec. 31-294 as to a written notice of claim must be met. See Salvaggio v. Candlewood Valley Bus Co., 6 Conn. Workers’ Comp. Rev. Op. 156, 731 CRD-7-88-5 (1989); Fuller, Supra. The Pereira Court noted:

The rule of strict compliance adopted by the review division is not supported by either the plain language or the legislative history of Sec. 31-297(b). To the contrary, Sec. 31-297(b) is remedial legislation that should be liberally construed to accomplish its humanitarian purpose. Dubois v. General Dynamics Corp., 222 Conn. 62, 67 (1992). Specifically, as noted above, it was enacted to require a prompt and thorough investigation of the employee’s claim so as to yield a specific disclaimer of liability and to avoid unnecessary delay in the adjudication of workers’ claims. As a result, if the notice of claim is sufficient to allow the employer to make a timely investigation of the claim, it triggers the employer’s obligation to file a disclaimer. Id.

Pereira, supra.

Thus, by virtue of the comments in Pereira, supra, we need not review the claimant’s notice of claim with our prior view requiring strict and technical compliance with Sec. 31-294 before permitting preclusion under Sec. 31-297(b). See also Quinn v. Standard Knapp, 1470 CRB-8-92-7 (decided July 8, 1994).

The second issue presented for review is whether the commissioner erred as a matter of law in granting the claimant’s Motion to Preclude where the claimant intentionally failed to mail a notice of claim to the respondent’s corporate insurance department. At the time of the claimant’s injury Sec. 31-297(c) provided, “Whenever liability to pay compensation for an injury or death which occurs on or after October 1, 1989, is contested by the employer, the notice required by subsection (b) of this section shall be filed on or before the twenty-eighth day after receipt by such employer of the notice of the claim.” (emphasis ours). By its own admission in its brief the respondent concedes that claimant’s counsel mailed five (5) notices of claim to the employer at various addresses. See Respondent Appellant’s Brief at pg. 5 dated March 16, 1994 and Claimant’s Exhibits E, D, F, G, I.

We find the respondent’s argument that the claimant should have sent a notice of claim to the respondent-employer’s corporate insurance department to be totally without merit. As this tribunal stated in Timothy v. Upjohn, 2 Conn. Workers’ Comp. Rev. Op. 1, 2, 150-CRD-3-82 (1983) dismissed, lack of final judgement 3 Conn. App. 162 (1985) “section 31-321 C.G.S. prescribes the manner of serving notice under chapter 568.” (Footnote omitted). Sec. 31-321 C.G.S provides:

Unless otherwise specifically provided... any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last known residence or place of business....

We think that the claimant clearly complied with Sec. 31-321 C.G.S. We do not see how Sec. 31-321 can possibly be construed so as to require that a notice of claim must be forwarded to a respondent’s corporate insurance department. In the instant case, the claimant forwarded a notice of claim to the employer at both the respondent-employer’s facility where the claimant was employed and the respondent-employer’s headquarters. We think that the claimant satisfied his obligation under Sec. 31-321.

We therefore affirm the December 29, 1993 Finding of Motion to Preclude of the Commissioner acting for the Third District.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.