Perrelli v. Stack, Inc.

The claimant was represented by Gerard McEnery, Jr., Esq., Barry J. Sinoway, P.C., 142 Temple St., New Haven, CT 06510.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the December 1, 1995 Ruling On Motion to Preclude of the Commissioner acting for the Third District was heard November 1, 1996 before a Compensation Review Board panel consisting of Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 1, 1995 Ruling On Motion to Preclude1 of the Commissioner acting for the Third District. In that decision, the trial commissioner denied the claimant’s motion to preclude the respondents from contesting the June 22, 1992 notice of claim for alleged injuries to the claimant’s right shoulder, head and neck. The trial commissioner found that the claimant had initially filed a timely notice of claim for injuries to his coccyx bone, low back, left shoulder, and pain in both legs caused by a compensable injury which occurred on April 4, 1990. The trial commissioner further found that the claimant failed to file a timely notice of claim for the alleged additional injuries. In support of his appeal, the claimant contends that the trial commissioner erred in denying his motion to preclude.

We will first address the issue of whether the claimant filed a timely appeal, as that determines whether this board has jurisdiction to consider the merits of the appeal. The claimant’s petition for review was filed on December 13, 1995, twelve days after the trial commissioner’s decision had been issued on December 1, 1995. As the tenth day fell on Sunday, December 11th, the final day to file a timely appeal was therefore December 12th, 1995. The claimant’s petition for review was not filed within the time limit prescribed by § 31-301(a), which states that “[a]t any time within ten days after entry of an award by the commissioner . . . either party may appeal therefrom to the compensation review board by filing in the office of the commissioner . . . an appeal petition . . . .” (Emphasis added). We have consistently ruled that the appealing party must file its appeal within the prescribed time period in order for this Board to have subject matter jurisdiction over the appeal. Corona v. Uniroyal Chemical, Inc., 9 Conn. Workers’ Comp. Rev. Op. 105, 987 CRD-5-90-3 (March 13, 1991) (dismissing appeal to this Board filed on the eleventh day following trial commissioner’s decision); Famiglietti v. Dossert Corporation, 8 Conn. Workers’ Comp. Rev. Op. 65, 804 CRD-5-88-12 (April 17, 1990); Johnston v. ARA Services Inc., 7 Conn. Workers’ Comp. Rev. Op. 19, 20, 765 CRD-7-88-8 (June 29, 1989).

The claimant has not contended that he received the commissioner’s decision in an untimely manner, or that the trial commissioner’s decision was not mailed to the parties in a timely manner.2 We conclude that the claimant’s petition for review was not filed within the time limits required by § 31-301(a) and we thus must dismiss it as untimely.

Even if we were to consider the merits of the claimant’s appeal, we would affirm the trial commissioner’s decision. Pursuant to § 31-297(b)(now § 31-294c (b)), an employer is required to file a Notice to Contest Liability, also known as a Form 43, with the Workers’ Compensation Commission within twenty-eight days after receiving a written notice of claim. Failure to do so results in the employer being “conclusively presumed to have accepted the compensability of the alleged injury....” The proper test in granting a motion to preclude is whether the notice of claim gave the employer sufficient notice to be able to investigate the claimant’s alleged injury. “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, 14 Conn. Workers’ Comp. Rev. Op. 350, 2105 CRB-3-94-7 (Sept. 22, 1995).

In the instant case, the trial commissioner found that pursuant to a voluntary agreement approved on June 26, 1992, the respondents substantially accepted all of the injuries as set forth in the claimant’s original notice of claim. The claimant had filed a notice of claim on June 22, 1992 for additional alleged injuries, specifically the right shoulder, head and neck injuries. The trial commissioner found that the claimant did not file a timely notice of claim within one year of the April 4, 1990 date of injury for said additional injuries.

As there was no timely written notice of claim for the injuries at issue, the trial commissioner properly denied the claimant’s motion to preclude. Pickard v. Manchester Gardens Condominium Ass’n., 10 Conn. Workers’ Comp. Rev. Op. 216, 1331 CRD-1-91-9 (1992) (for preclusion to lie, the written notice of claim must strictly comply with the technical requirements of § 31-294); see also Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276 (1988), cert. denied, 207 Conn. 805 (1988) (an employer cannot be precluded from asserting the defense that a claim was not timely filed under § 31-294). Moreover, it is reasonable to infer that the respondents accepted only those injuries as listed in the voluntary agreement, but did not accept the additional injuries as listed in the June 22, 1992 notice.

The trial commissioner’s decision is affirmed.

Commissioners George Waldron and Robin L. Wilson concur.

1 We note that in a related matter the claimant has filed a petition for review from the January 12, 1996 Finding and Award of the trial commissioner acting for the Third District. That appeal is not presently before us. BACK TO TEXT

2 At oral argument before this board, the claimant’s attorney stated that he received the trial commissioner’s December 1, 1995 decision on December 4, 1995. As December 3, 1995 was a Sunday, his receipt on Monday December 4, 1995 appears to be consistent with the decision being mailed on December 1, 1995. BACK TO TEXT