Poulin v. Town of West Hartford

The claimant was represented by Bernard Poliner, Esq., Poliner, Poliner & Antin, P. C., 516 Main St., Middletown, CT 06457-3355.

The respondents were represented by Elizabeth Dee Bailey, Esq., Assistant Corporation Counsel, Town Of West Hartford, 50 South Main St., West Hartford, CT 06107.

These Petitions for Review from the October 24, 1995 Finding of Granting of Motion to Preclude and the February 8, 1996 Finding and Award of the Commissioner acting for the Sixth District were heard September 20, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the October 24, 1995 Finding of Granting of Motion to Preclude and the February 8, 1996 Finding and Award of the Commissioner acting for the Sixth District. They argue on appeal that the commissioner erred by granting the Motion to Preclude and by concluding that the claimant suffered a compensable back injury. We find error, and reverse the trial commissioner’s decision.

The claimant alleges that she sustained injuries to her upper and lower back while lifting a box during the course of her employment with the Town of West Hartford on June 1, 1994. She filed a Form 30C alleging such injuries on July 13, 1994. The respondents, who paid temporary total disability benefits to the claimant from the date of her injury through July 11, 1994 (without prejudice), filed a Form 36 on July 29, 1994 stating that the claimant returned to work on July 11, 1994. The respondents then filed a Form 43 notice of intent to contest liability on August 5, 1994. The claimant filed a Motion to Preclude on August 2, 1995, alleging that the Form 43 only contested the lower back injury, and not whether an incident took place on June 1, 1994. Despite the respondents’ objection that the claimant was not truthful in her description of the incident that allegedly caused her injuries, the commissioner granted the Motion to Preclude. The respondents appealed that decision, admitting that they had accepted the claimant’s cervical injury because they did not file a timely disclaimer of that injury.

The trial commissioner subsequently issued an award in which he made a specific finding that the claimant, a meter reader, was reaching up to remove a 40-pound box of parking tickets from a high shelf when she experienced back and shoulder pain. She was diagnosed with a cervical sprain and left trapezius muscle strain the next day; the day after that, she experienced low back pain which became even more severe after physical therapy. Her injuries kept her out of work until July 13, 1994. She was later diagnosed with a ruptured disc at L5-S1, requiring surgery. This kept her out of work from August 30, 1994 to November 21, 1994. The doctor who performed the surgery opined that the ruptured disc was causally related to the box-lifting incident. The respondents disagreed, offering contrary expert testimony. The trial commissioner found that the lumbar spine injury was compensable, and ordered the respondents to pay temporary total and permanent partial disability benefits. The respondents also appealed that decision.

Whenever an employer contests a workers’ compensation claim, it is required to file notice stating “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.” Section 31-294c C.G.S. The purpose of this requirement is to insure that employers promptly investigate claims and that employees are timely apprised of the specific reasons for their denial. Menzies v. Fisher, 165 Conn. 338, 343 (1973). As long as the specific substantive grounds for contesting liability are stated and a party is not prejudiced in its ability to maintain a claim, a Form 43 need not be technically perfect. Id., 345; White v. General Electric Co., 3132 CRB-6-95-7 (decided Oct. 16, 1996).

In this case, the claimant’s notice of injury stated that she had “sprained her upper and lower back while lifting a box of parking tickets from a shelf above her shoulders.” The respondents’ Form 43 listed five separate grounds for contest, including “[a]ny injury to lower back did not arise out of or in the course of employment,” and “[n]o causal connection between the lower back injury and claimant’s employment.” In Tovish v. Gerber Electronics, 19 Conn. App. 273 (1989), a trial commissioner had granted a Motion to Preclude because the respondents’ Form 43 stated “injury (heart attack) did not arise out of or in the course and scope of employment.” Id., 274-75. The Appellate Court reversed, because that disclaimer clearly contested one of the five distinct elements of a prima facie workers’ compensation claim, i.e., that the claimant has suffered a personal injury that arose out of and in the scope of his employment. Id., 275-76.

The same analysis applies here. The notice provided by the respondents clearly contested the existence of a causal connection between any work-related occurrence and the injury to the claimant’s back. In order for the claimant to meet her burden of proof on that issue, she would now have to show that an incident occurred during her employment that injured her lower back. A necessary component of such a demonstration is the occurrence of the injury itself. The respondents’ disclaimer thus framed this issue as one in dispute, and the commissioner should not have precluded the respondents from discussing the circumstances of the alleged lifting incident as it related to the lower back injury. See also Crute v. Arthur Fletcher Fuel Oil Co., 11 Conn. Workers’ Comp. Rev. Op. 283, 286, 1390 CRB-2-92-3 (Dec. 2, 1993).

The trial commissioner’s decision is reversed. The case is remanded to him for further proceedings on the issue of the compensability of the lower back injury.