Rice v. Craft Works/Genovese

The claimant was represented by Lynne Rozen, Esq., 150 West Main St., P.O. Box 2323, Branford, CT 06405.

The respondents were represented by Timothy Welsh, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the August 4, 1997 Granting of Motion to Preclude of the Commissioner acting for the Third District was heard January 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the August 4, 1997 Granting of Motion to Preclude of the trial commissioner acting for the Third District. In that decision the trial commissioner concluded that the respondents failed to file a Notice to Contest Liability within twenty-eight days following the Notice of Claim filed by the claimant. Pursuant to § 31-294c(b), the trial commissioner granted the claimant’s Motion to Preclude. In support of their appeal, the respondents argue that the Notice of Claim was not legally sufficient and thus that the trial commissioner erred in granting the Motion to Preclude. We find no error.

The trial commissioner found the following relevant facts. On July 29, 1996, the claimant was employed by Genovese Drug Stores, Inc. The claimant worked at a crafts store owned by Genovese Drug Stores, Inc. called “Craft Works” in Milford, Connecticut. The claimant contends that she sustained a low back, repetitive trauma injury due to the repetitive physical work she performed for the employer. The claimant sent a Notice of Claim (Form 30C)1 by certified mail to “Craft Works/Genovese” at the Milford address where she worked. The Notice of Claim was received by the employer on August 8, 1996, and the employer filed a Notice to Contest Liability (Form 43) on September 9, 1996.

In support of their appeal, the respondents contend that the Notice of Claim was insufficient, arguing that it listed both the employer’s name and the date of injury incorrectly, and that it was sent to the wrong address. We do not agree. Pursuant to § 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 or death....” § 31-294c(b).

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). Whether a notice of claim is sufficient to grant a motion to preclude depends upon whether “the notice of claim is sufficient to allow the employer to make a timely investigation of the claim....” Chase v. State, 45 Conn. App. 499, 504 (1997) (citing Pereira, supra), see also Knapp v. UTC Sikorsky Aircraft, 14 Conn. Workers’ Comp. Rev. Op. 9, 2016 CRB-4-94-4 (April 28, 1995); Bell v. Dow Corning STI, Inc., 13 Conn. Workers’ Comp. Rev. Op. 109, 111, 1777 CRB-4-93-7 (Jan. 30, 1995).

In the instant case, the respondents argue that the name of the employer listed on the Form 30C incorrectly states “Craft Works/Genovese” rather than “Genovese Drug Stores, Inc.” However, the trial commissioner specifically found that Craft Works was opened by Genovese Drug Stores, Inc., and that the sign outside of the store where the claimant worked stated “Craft Works” as did the bags that were used at the store. Moreover, the claimant’s business cards also stated “Craft Works.” Certainly, under these circumstances it cannot be said that the employer’s name on the notice hindered the employer’s opportunity to undertake an immediate investigation. See Chase, supra, at 504.

We will next address the respondents’ contention that the date of injury listed on the Notice of Claim was insufficient. The claimant alleged a repetitive trauma injury and listed the date of injury as July 29, 1996. The respondents contend that the date of injury should have referenced a larger period of the claimant’s employment rather than a single date. We do not agree. The Appellate Court explained as follows:

Moreover, our Supreme Court has held that the date of injury for a repetitive trauma claim is the “last date of exposure to the work-related incidents of repetitive trauma.” Discuillo v. Stone & Webster, 242 Conn. 570, 581 (1997); see also Dorsey v. United Technologies Corp., 45 Conn. App. 707 (1997).

In the instant case, the respondents have made no specific contentions that the date of injury listed on the notice hindered their investigation of the claim in any way. We find no error in the determination that the date provided sufficient notice to the employer, and was sufficient to support a Motion to Preclude. See Bonin v. Thames Valley Steel, Case No. 1492 CRB-2-92-8 (Feb. 14, 1997); see also Quinn v. Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334, 1470 CRB-8-92-7 (July 8, 1994), dismissed for lack of final judgment, 40 Conn. App. 449 (1996).2

Finally, we will address the respondents’ contention that the Notice of Claim should have been mailed to the New York corporate headquarters of Genovese Drug Stores, Inc. In the instant case, by certified mail the claimant sent the Notice of Claim to the facility in Milford where she was employed. Section 31-294c(a) requires that the notice of claim be sent “to the employer.” At oral argument, the respondents contended that the notice should have been sent either to the out-of-state corporate office or to the statutory agent for service of process. To the contrary, we have held that sending “notice to an agent for service of process could significantly delay the investigation of a claim, and is not the prescribed procedure under § 31-321.” McKenna v. Thorne & Cleaves, Inc., Case No. 3365 CRB-7-96-6 (July 29, 1997) (emphasis added).

In Chase, supra, the Appellate Court noted that the address used by the employer on its Notice to Contest Liability was the same address used by the claimant on the Notice of Claim. Similarly, in the instant case we note that the employer’s Notice to Contest Liability lists the same Milford, Connecticut address as used by the claimant and does not include the New York address. In the instant case, the trial commissioner did not find that the Notice of Claim was sent to the incorrect address, and the respondents do not make any specific contention that the receipt of the notice at the Milford store in any way hampered their ability to timely investigate the claim. As in Chase, supra, it may be that “(a)ny lack of opportunity to investigate the claim apparently resulted from internal misdirection of the notice.” Id. at 504.

The trial commissioner’s decision is affirmed.

Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.

1 The Notice of Claim lists the claimant’s name, social security number, date of birth, telephone number, and address. In addition, the notice lists the date of injury as “7/29/96”; the town of injury as “Milford”; the body part as “low back”; the injury as “injured low back in course of employment”; and the question ‘occupational illness or repetitive trauma?’ is answered “YES YES.” (Claimant’s Exh. A). BACK TO TEXT

2 In Quinn, supra, the board explained as follows: “Practical reasons exist for distinguishing between accidental injury cases and repetitive trauma cases regarding the precision with which the claimant lists the date of injury in the notice of claim.... In [repetitive trauma] cases, the injury process, by definition, has occurred over time. Knowledge of a precise date of injury in such cases may simply notify the employer of when the claimant ceased working for the employer. Such information will not facilitate any subsequent investigation of the claim, as the investigation must necessarily focus on the weeks, months, or years preceding the ‘date of injury.’” Id. at 336-7 (citations omitted). BACK TO TEXT