Otero v. City of Bridgeport

The claimant was represented by Steven H. Cousins, Esq., Cousins and Johnson, 2563 Main St., Stratford, CT 06497.

The respondents were represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the April 26, 1993 Findings and Dismissal of the Commissioner for the Fourth District was heard April 8, 1994 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 claimants and respondents have both petitioned for review from the April 26, 1993 Findings and Dismissal of the Commissioner for the Fourth District. The claimant seeks to have the case remanded for further evidentiary findings, while the respondents seek the entry of a finding that the claimant’s workers’ compensation claim was time-barred by General Statutes §31-294. For the reasons stated below, we reverse the trial commissioner’s decision.

We first address the respondents’ claim, to which the following facts are relevant. The claimant joined the Bridgeport Police Department in July 1983. On February 25, 1986, he suffered a strained lower back while responding to a burglar alarm, causing him to miss two work days. On May 26, 1986, he again strained his lower back in a struggle with a suspect, causing him to miss another two or three days of work. The claimant followed established police procedure in reporting both injuries to his employer immediately after they occurred. This procedure consisted of his filling out accident reports and reports of personal injury that were signed by his superior officer and, in the case of the personal injury reports, directed to the Board of Police Commissioners. No further documentation of the injuries was filed, and the claimant continued his employment with the police department.

Four years later, the claimant began experiencing severe low back pain. He underwent surgery to repair a disc herniation, and was diagnosed with a 25 percent permanent partial impairment of the back by his treating physician. The physician opined that the disability was caused in equal part by the two back injuries the claimant suffered in 1986. Notice of the claim was filed on February 7, 1991. Although the commissioner did not agree that the claimant’s back surgeries were a direct result of the two 1986 back injuries, and thus dismissed the claim, he did find that the claimant’s total compliance with department procedures in reporting his claim at the time of his two compensable injuries prevented his employer from asserting the statute of non-claim, §31-294, as a bar to his subsequent claim for benefits. The respondents have appealed the latter finding.

The respondents contend that the claimant did not file a timely written notice of claim, and that the commissioner’s finding that the claimant’s 1986 injuries were compensable was thus improper. At the time of the claimant’s injuries, §31-294 provided that “[n]o 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 . . . . 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, . . . and the name and address of the employee and of the person in whose interest compensation is claimed.” The respondents maintain that this statute must be strictly complied with, and that the claimant’s failure to do so by filing a timely Form 30C created a jurisdictional defect fatal to his cause of action under the statute. We agree.

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).

Our disposition of the above issue renders discussion of the issue raised by the claimant unnecessary.