Funaioli v. City of New London

The claimant was represented by Dominic S. Piacenza, Esq., 164 Hemstead St., New London, CT 06320-5638.

The respondents were represented by Robert McGann, Esq., McGann, Bartlett, & Brown, 281 Hartford Tpke., Vernon, CT 06066.

This Petition for Review from the May 22, 1996 Finding and Award of the Commissioner acting for the First District was heard February 28, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the May 22, 1996 Finding and Award of the Commissioner acting for the First District. They argue on appeal that the trier incorrectly found that the employer’s first report of injury amounted to a timely notice of claim pursuant to § 31-294 C.G.S. We agree with their argument, and reverse the trial commissioner’s decision.

The claimant, a police officer with the city of New London, was diagnosed with hypertension in March 1987. He testified that he reported his high blood pressure to his supervisors in March 1988. He did not know if he had filed a written notice of claim pursuant to § 31-294 with either his employer or this Commission. He hired Attorney Paul Flynn to represent him on his hypertension case in March 1988.

Flynn sent a letter dated March 21, 1988 via regular mail to the Workers’ Compensation Commissioner for the Second District stating: “Enclosed you will find a WC Form 15 with reference to the above-named claimant. We are not requesting a hearing at this time.” The top portion of the letter read, “RE: Raymond Funaioli versus the City of New London, 7-433c claim, 3/27/87.” Flynn sent a similar letter to the Chairman of this Commission, omitting only the reference to a § 7-433c claim. Flynn testified that enclosed in the letter was a Form 15, Workers’ Compensation Employer’s First Report of Injury or Occupational Disease, dated March 22, 1987 (a typographical error). He testified that he also sent a copy of this letter and the FRI to the respondent employer, although it was his standard practice to send a Form 30C (as required by the statute) when he was notifying the proper parties of a claim in a workers’ compensation case. The claimant finally sent a Form 30C claiming compensation for hypertension and heart disease on September 24, 1992, over five years after the original diagnosis.

The claimant’s FRI was received by the Chairman’s office via the Second District in March 1988, as per procedure. A Paralegal Specialist in the district office testified that such documents do not prompt the creation of a file in the same manner as a Form 30C. The Form 15 was not in the Second District file for this case. The respondents argued that this filing was not adequate to fulfill the notice requirements set forth in § 31-294 [now 31-294c]. The trier concluded, however, that the FRI met the notice requirements set forth in Landrette v. City of Bristol, 11 Conn. Workers’ Comp. Rev. Op. 149, 1279 CRD-6-91-8 (Aug. 19, 1993), and found the claimant to be entitled to benefits. The respondents have appealed that decision.

The sole question in this appeal is whether the claimant’s First Report of Injury meets the notice requirements of § 31-294 [now § 31-294c]. If it does not do so, the claimant’s § 7-433c claim would be untimely filed, and would have to be dismissed. Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 1713 CRB-4-93-4 (April 17, 1995). At the time that the claimant was diagnosed with hypertension, § 31-294 provided that “no proceedings for compensation .. . shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury. . . .” (Emphasis added). Despite another statutory provision regarding prejudice, written notice is still required unless one of the enumerated exceptions (i.e. a hearing, a submitted voluntary agreement, or employer-provided medical treatment) has been satisfied.

We recognize that the Workers’ Compensation Act was designed to further a remedial purpose, and should be construed broadly to effectuate that intent. Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 302-303 (1993). Still, “[t]he purpose of § 31-294, in particular, is to alert the employer to the fact that a person has sustained an injury that may be compensable, and that such person ‘is claiming or proposes to claim compensation under the Act.’” Id., 303 (internal citation omitted) (emphasis omitted), quoting Rehtarchik v. Hoyt-Messinger Corp., 118 Conn. 315, 317 (1934). The concept of substantial compliance with the notice content requirements of § 31-294 discussed in Hayden-Leblanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3, 1373 CRD-2-92-1 (Jan. 5, 1994), supposes that the employer has actual knowledge of the claimant’s intent to file a workers’ compensation claim, or that such notice would be clear to a reasonable person from all of the documents submitted. If the claimant does not give sufficient notice that he is considering filing a claim under Chapter 568 (or § 7-433c, in this case), he cannot be held to have satisfied § 31-294.

In Otero, supra, this board held that a police officer who reported two back injuries to his employer and filled out accident reports did not do enough to toll the § 31-294 statute of nonclaim. Merely reporting an injury to one’s employer does not notify the employer that a workers’ compensation claim is being or going to be pursued. Id., 249-50. This board has entertained several cases recently where similar results were reached. See, e.g., Gaffney v. Stamford, 15 Conn. Workers’ Comp. Rev. Op. 257, 2219 CRB-7-94-11 (May 24, 1996) (first report of injury is not a claim for compensation); Cislo v. Shelton, 16 Conn. Workers’ Comp. Rev. Op. 14, 2291 CRB-4-95-2 (Oct. 4, 1996) (letter to police chief stating that claimant was being treated for hypertension and that he should “take any steps necessary pursuant to this information” did not notify the department of a potential workers’ compensation claim).

The claimant attempts to distinguish Otero by arguing that his Form 15 and cover letter were filed with the Workers’ Compensation Commission rather than the employer, thus indicating an intent to pursue workers’ compensation remedies. Ironically, that fact hurts the claimant more than it helps him. Section 31-316 requires an employer to report an employee’s injuries to the chairman of this Commission. This is generally done by filing a First Report of Injury form for each separate occurrence. As the Paralegal Specialist testified to in this case, a FRI is completely separate from a Notice of Claim, and is filed for a different purpose. An employee of the Commission would treat an FRI form as the item it purports to be on its face—a First Report of Injury—regardless of any notation on that form that might refer to a “claimant.” Indeed, the trial commissioner himself stated that an FRI would not be recognized as a Notice of Claim under the Act (Transcript, p. 16), and the claimant’s attorney admitted that his practice was to file Forms 30C rather than FRIs when making a claim for compensation.

The fact is, there was no confusion or ambiguity from the point of view of this Commission when the claimant’s Form 15 was received in the mail. The document was unequivocally treated as a First Report of Injury, and was never considered to be a notice of claim. The facts of this case bear that out, as does the procedural practice of this Commission. Even though the elements of § 31-294 might all have been present somewhere in that FRI, the use of that form negated the effect that the content alone might have had on another piece of paper. The accompanying cover letter simply stated that a Form 15 was enclosed, and that the “claimant” was not requesting a hearing at this time. From those documents, an employee of this Commission could not infer that the claimant’s attorney was attempting to file a claim rather than an injury report. Thus, the trial commissioner’s decision must be reversed. Landrette, supra, is inapposite.