Belletto v. Wilson Motors, Inc./Ben Wilson Nissan

The claimant was represented by Donald Cousins, Esq., Cousins & Johnson, 2563 Main St., Stratford, CT 06497.

The respondents were represented by Richard Bartlett, Esq., and Suzanne M. Rathbun, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.

This Petition for Review from the December 27, 1994 Findings Re: Motion to Preclude of the Commissioner acting for the Fourth District was heard June 9, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. Tracy and Amado J. Vargas.

OPINION

AMADO J. VARGAS, COMMISSIONER. The respondents have petitioned for review from the December 27, 1994 Findings Re: Motion to Preclude of the Commissioner acting for the Fourth District. They argue on appeal that the trial commissioner erred in granting the claimant’s Motion to Preclude. We agree, and reverse the trial commissioner’s decision.

The claimant filed a Form 30C notice of claim on March 23, 1994 listing his employer as Ben Wilson Nissan, the date of injury as June 29, 1993, and the injury itself as “open-heart surgery--triple by-pass--chronic hypertension, unresolved. Since surgery leg swelling.” The respondents did not file a Form 43 to contest that claim until May 31, 1994, well over 28 days after written notice of the claim was received. See § 31-294c(b). The claimant then filed a Motion to Preclude the respondents from defending the claim.

The trial commissioner found that “Ben Wilson Nissan” was an appropriate employer designation for the purpose of the Form 30C, even though the corporate title of the respondent is Wilson Motors Inc. He also found that the Form 30C described the nature of the repetitive trauma and the affected body part in a sufficient manner to trigger the respondents’ obligation to investigate the claim and file a timely disclaimer. Finally, the trial commissioner found that the June 29, 1993 date of injury was accurate, as the claimant was not out of work prior to that date even though he was not physically present on the job site. He concluded that the Form 30C contained the elements required by § 31-294c, that it was properly served on the employer and the Workers’ Compensation Commission, and that the respondents’ Form 43 was late. He therefore granted the Motion to Preclude, from which the respondents have appealed.

At one time, this board required strict compliance with § 31-294c in order for preclusion to lie. Our Supreme Court recently stated, however, that the rule of strict compliance was unsupported by the language of the statute or its legislative history, and was contradicted by the remedial purpose of the statute. Pereira v. State of Connecticut, 228 Conn. 535, 542-43 n.8 (1994). The proper test in granting a Motion to Preclude now is whether the notice of claim gave the employer sufficient notice to be able to investigate the claimant’s alleged injury. Bell v. Dow Corning STI, Inc., 13 Conn. Workers’ Comp. Rev. Op. 109, 111, 1777 CRB-4-93-7 (Jan. 31, 1995); see also Knapp v. UTC Sikorsky Aircraft, 14 Conn. Workers’ Comp. Rev. Op. 9, 2016 CRB-4-94-4 (April 28, 1995).

“Although minor errors in a notice of claim will no longer prevent preclusion, the basic elements of a notice of claim must still be present in order to trigger the employer’s responsibility to investigate the claim promptly.” Bennings v. State of Connecticut, 2105 CRB-3-94-7 (decided Sept. 22, 1995). In this case, we do not believe that the claimant described the time and circumstances of his injury accurately enough to ensure that the respondents had an opportunity to undertake an immediate investigation. The date of injury listed on the Form 30C is the date of the claimant’s open heart surgery, and the description of the injury focuses on the surgery and the resulting leg swelling rather than the dates of the repetitive trauma that led to the claimant’s hypertension. Despite the trial commissioner’s finding that June 29, 1993 was an appropriate date of injury because it was the last date of exposure to stress, see Fleming v. New Haven Register, 1945 CRB-3-94-1 (decided Sept. 6, 1995), the fact remains that the claimant was physically away from the workplace for several weeks preceding that date. It would be difficult for an employer to make a connection between that date and a compensable injury without more information as to the cause of the claimant’s hypertension.

As the claimant has not shown any prejudice from the late filing of the Form 43, we do not think that the humanitarian purpose of the Workers’ Compensation Act requires that the shortcomings of the Notice of Claim be overlooked in this case, thereby precluding the respondents from defending the merits of the claim. See Dubois v. General Dynamics Corp., 222 Conn. 62, 67 (1992); Bell, supra, 111. This is especially true given the additional discrepancies surrounding the name of the employer and the proper service of notice on the corporate employer, although standing alone, those matters would not likely be dispositive of this case. Taken as a whole, however, the Notice of Claim was not legally sufficient to support the trial commissioner’s granting of the Motion to Preclude.

The trial commissioner is reversed, and the case is remanded for further proceedings on the merits.