Storey v. Hendel Petroleum Co.

The claimant was represented by Frederick Berberick, Esq., Berberick, Murphy, Devine & Whitty, P.C., 82 Chelsea Harbor Dr., P.O. Box 1126, Norwich, CT 06360.

The respondents were represented by Anne Marie D’Attelo, Esq., Genovese, D’Attelo & Lerman, 195 Scott Swamp Rd., P.O. Box 4053, Farmington, CT 06034-4053.

This Petition for Review from the March 25, 1997 Finding and Award of the Commissioner acting for the Eighth District was heard December 19, 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 March 25, 1997 Finding and Award of the trial commissioner acting for the Eighth District. In that decision, the trial commissioner granted the claimant’s Motion to Preclude the employer from contesting the claimant’s workers’ compensation claim pursuant to § 31-294c(b). In support of their appeal, the respondents contend that the claimant filed the Notice of Claim with the incorrect employer, and thus the trial commissioner did not have jurisdiction to grant the Motion to Preclude. In addition, the respondents contend that the Notice of Claim provided the employer with an incorrect date of injury, and therefore that the trial commissioner erred in granting his Motion to Preclude.

The trial commissioner found the following relevant facts. In 1984, the claimant was hired to work for Hendel Petroleum Company by Ray Perkins, a Vice President of Hendel Petroleum Company. The claimant was employed as a service technician for the respondent employer, Hendel Petroleum Company. The claimant’s job duties included installing gas tanks both indoors and outdoors, and installing oil tanks. On December 7, 1992, he was taken to the hospital and diagnosed with acute pneumonitis. The claimant returned to work on December 14, 1992 and worked through January 8, 1993, during which time the claimant was mostly outside in the cold. While working on January 8, 1993, the claimant could not breathe and drove himself to the hospital, where he was diagnosed with pneumonia. The next day, on January 9, 1993, the claimant lost his breath and could not breathe at his home, and was rushed to the hospital by ambulance. The claimant could not remember if he worked on January 9, 1993.

On November 8, 1993, the claimant filed a Form 30C Notice of Claim wherein he alleged that he sustained an injury arising out of and in the course of his employment on January 9, 1993. The claimant attached to the Notice of Claim a “Schedule A” wherein he explained that on January 9, 1993 he was rushed to the hospital where he was diagnosed with congestive cardiomyopathy. The “Schedule A” further states that he had worked outside from December 7, 1992 through January 8, 1993 in extremely cold weather with acute pneumonitis and that the work duties superimposed upon the viral syndrome pneumonitis caused his congestive cardiomyopathy. The respondents failed to contest the Form 30C within twenty-eight days.

We will first address the respondents’ contention that the claimant was employed by Hendel’s, Inc. rather than by Hendel Petroleum Company, and thus that the trial commissioner did not have jurisdiction over the claim. The respondents contend that “it was error for the Commissioner to rule on a Motion to Preclude without first establishing the existence of an employer-employee relationship.” (Respondents’ Brief at p. 4). To the contrary, the trial commissioner made numerous and detailed findings which established that the claimant was an employee of Hendel Petroleum Company rather than of Hendel’s, Inc. (See Findings No. 4, 5, and 8 through 40). The trial commissioner specifically found: “The claimant was an employee of The Hendel Petroleum Company from the start of his employment December 7, 1992 through January 9, 1993 as stated in his Notice of Claim.” (Finding A).

In the instant case, the respondents contend that the claimant had been switched from the payroll of Hendel Petroleum Company to the payroll of Hendel’s, Inc. However, the claimant was not informed by anyone of this change, and continued to perform the same duties and to use the same van. The claimant’s day-to-day duties in late December of 1992 and January of 1993 were directed by Marion Benjamin and Richard Russo who was the General Manager of Hendel Petroleum Company. Russo did not know when the claimant’s payroll was switched from Hendel Petroleum Company to Hendel’s Inc. Russo testified that a service technician such as the claimant would perform services for both Hendel Petroleum Company and Hendel’s, Inc.

The proper test in granting a Motion to Preclude is whether the notice of claim provided the employer with 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. 30, 1995); see also Knapp v. UTC Sikorsky Aircraft, 14 Conn. Workers’ Comp. Rev. Op. 9, 2016 CRB-4-94-4 (April 28, 1995). In the instant case, the trial commissioner specifically found that the Hendel Petroleum Company and Hendel’s, Inc. are located at the same place, have the same telephone number, and that the same receptionist answers the telephone for both companies. Moreover, the same individual serves as president for both companies. Under these circumstances, including the findings of fact which indicate that the claimant’s work duties were controlled by the Hendel Petroleum Company, we find no error in the trial commissioner’s conclusion that the listing of “Hendel Petroleum Company” on the Notice of Claim constituted sufficient notice to support a Motion to Preclude. Indeed, under these facts there would be no apparent reason that the Notice of Claim caused the respondents to be unable to adequately investigate the claim, and the respondents do not make this contention.

We will next address the respondents’ contention that the trial commissioner erred in granting the Motion to Preclude because the Notice of Claim lists the date of injury as January 9, 1993, the date the claimant was hospitalized. The respondents contend that the claimant did not work on January 9, 1993. Moreover, the respondents contend that the attached description of the injury was confusing because it appeared to allege a repetitive trauma injury.

At one time, this board required strict compliance with § 31-294c in order for preclusion to lie. Our Supreme Court subsequently stated 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). We have repeatedly held that 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. Bell, supra; see also Knapp, supra.

“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); see also Belletto v. Wilson Motors, Inc., 15 Conn. Workers’ Comp. Rev. Op. 223, 2257 CRB-4-95-1 (April 29, 1996). We have held that in repetitive trauma cases, “a de minimus inaccuracy in the date of injury... will not run afoul of the requirements of Sec. 31-294 nor will it prevent a trial commissioner from granting preclusion.” Quinn v. Standard Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334, 1470 CRB-8-92-7 (July 8, 1994), appeal dismissed for lack of final judgment, 40 Conn. App. 446 (1996). Accordingly, even a five day discrepancy in the date of a repetitive trauma injury was held to be sufficient notice to grant a motion to preclude in Bonin v. Thames Valley Steel, 1492 CRB-2-92-8 (Feb. 14, 1997), appeal dismissed for lack of final judgment, A.C. 16963 (5/28/97). In contrast, for accidental injury, which by definition may be definitely located as to the time when and the place where the accident occurred, the date of injury on the notice of claim must be accurate in order to support a motion to preclude. Quinn, supra, at 336.

In the instant case, the Notice of Claim accurately provides January 9, 1993 as the date of injury for the claimant’s cardiomyopathy, which constitutes an accidental injury. Moreover, the attached “Schedule A” provides a description of the alleged facts leading up to the January 9, 1993 injury. The Notice of Claim thus ensured that the respondents had an opportunity to undertake an immediate investigation. Accordingly, we find no error in the trial commissioner’s granting of the Motion to Preclude.