Cifarelli v. Pitney Bowes, Inc.

The claimant was represented by Frank Grazioso, Esq., Grazioso & Hosen, 746 Chapel Street, New Haven, CT 06521. Notice also sent to co-counsel Richard Freeman, Esq., 129 Church Street, New Haven, CT 06510.

The respondent was represented by Margaret McGrail, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the March 10, 1999 Finding and Award of the Commissioner acting for the Eighth District was heard October 15, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondents have petitioned for review from the March 10, 1999 Finding and Award of the Commissioner acting for the Eighth District, in which the trier ruled that the heart attack suffered by the claimant’s late husband was a compensable injury. They contend on appeal that the commissioner erred by granting the claimant’s Motion to Preclude despite significant defects in her notice of claim. We find no error in the trial commissioner’s decision, and affirm his ruling.

The decedent was employed by the respondent Pitney Bowes on January 15, 1997, when he sustained a fatal heart attack. The claimant, the dependent spouse of the decedent, filed a notice of claim for workers’ compensation benefits through her attorney on November 26, 1997. A copy of that letter was sent to this Commission, and another copy was sent by certified mail to the corporate headquarters of the respondent employer in Stamford. The respondents did not file a Form 43 contesting this claim until January 8, 1998, which was beyond the 28-day disclaimer period specified in § 31-294c.1 In response to the tardy disclaimer, the claimant filed a Motion to Preclude the respondents from denying compensability. The trial commissioner granted this motion after he considered evidence offered by the parties, and rejected the respondents’ argument that the notice of claim was defective. He also denied the respondents’ Motion to Correct.2 They have taken an appeal of those rulings to this board.

Section 31-294c(b) was enacted “to require a prompt and thorough investigation of the employee’s claim so as to yield a specific disclaimer of liability and to avoid unnecessary delay in the adjudication of workers’ claims.” Pereira v. State, 228 Conn. 535, 543 n.8 (1994). The determination of whether a notice of claim is sufficient to allow the employer to make such an investigation, thereby triggering its obligation to file a timely disclaimer, is a question of law, not one of fact. Chase v. State, 45 Conn. App. 499, 508 (1997), citing Pereira, supra. The respondents argue that the claimant’s notice did not satisfy the mandate of § 31-294c(a) that it “be given to the employer” and that it “state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, . . . and the name and address of the employee and of the person to whose interest compensation is claimed.” As a result, they assert that they had no opportunity to respond to this claim within the 28-day statutory time period.

The notice in question contains a preface identifying the claimant as “Donna Cifarelli, Administratrix of Est. Of Angelo Cifarelli,” and listing the date of the accident (January 15, 1997), its location (Wallingford, CT), and the nature of the injury (“cardiac arrest, possibility of electric shock-stress induced”). Claimant’s Exhibit C. The body of the letter begins by stating that the named attorneys are representing “Donna Cifarelli, widow of Angelo Cifarelli and Administratrix of the Estate of Angelo Cifarelli with regard to cardiac arrest sustained by Mr. Cifarelli, arising out of, and in the course of his employment. Mr. Cifarelli sustained cardiac arrest while servicing a copier at Consumers Applied Technology, 8 Fairfield Boulevard, Wallingford, Connecticut, on the above-stated date.” The letter then requests that the employer acknowledge receipt of the notice of claim, and asks the employer to forward all pertinent information to the claimant, including the decedent’s personnel file, payroll records, and attendance records. These documents are among those enumerated in a numbered list. At the end of that 12-item roster, a new paragraph states, “By a copy of this letter, I am also requesting the employer to advise me as to whether it will file a voluntary agreement in this matter relating to the payment of death benefit payments and I am warning the employer that under Connecticut General Statute Sec. 31-294c(b) it shall be precluded from challenging compensability unless it files a Notice of Contest within 28 days of receipt of this Notice of Claim.” The letter then concludes with a brief closing line, salutation and signature.

This notice, which was sent to the Eighth District office of this Commission and the corporate headquarters of Pitney Bowes, is legally sufficient to support a Motion to Preclude. Contrary to the respondents’ assertions, the letter is simple, clear and relatively concise, and does not attempt to mask its status in any way. Its unmistakable purpose is to notify the employer that the widowed claimant is filing a workers’ compensation claim for her late husband’s heart attack, and to request information relevant to that claim. True, the language of the disclaimer required by § 31-294c(b) has been altered from that on the standardized Form 30C, as it makes no direct reference to payment “without prejudice.” However, the warning is still clearly visible at the end of the letter (similar to its location at the base of a Form 30C), and the key element of the disclaimer is communicated—i.e., the employer must respond to the claim within 28 days, or else the compensability of the injury will be deemed accepted. The respondents have not attempted to prove that the absence of the “payment without prejudice” language caused Pitney Bowes to fail to contest this claim in a timely manner. This board is not inclined to interpret § 31-294c so rigidly that any deviation in the disclaimer is automatically held to render it insufficient. The overall content of the notice adequately serves its purpose.

We are also unpersuaded by the respondents’ allegation that the notice was sent to the wrong department at Pitney Bowes. Section 31-321 requires service of documents upon an employer to be accomplished “by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business.” The claimant sent her notice to the employer’s corporate headquarters, presumably directing it to the payroll department because the decedent’s wage and attendance records were being sought as part of the appeal. This is consistent with § 31-321. Serving notice upon an employer’s corporate headquarters is not akin to serving notice to a statutory agent for service of process; see McKenna v. Thorne & Cleaves, Inc., 3365 CRB-7-96-6 (July 29, 1997); and it does not ineluctably lead to a likelihood that the employer will fail to apprehend that there is an action pending against it. If notice is later misdirected or set aside by the employer’s staff, thus delaying a response, the claimant is not normally responsible for that unfortunate vagary. See Rice v. Craft Works/Genovese, 3665 CRB-3-97-8 (Feb. 13, 1998). Here, the trier listened to testimony from employees of Pitney Bowes, evaluated it, and concluded that the claimant’s notice was sent to a proper location. See Oct. 27, 1998 Transcript. We may not second-guess his impressions of that testimony on appeal. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997).

Accordingly, the trial commissioner’s decision to grant the Motion to Preclude is affirmed. A hearing on benefits due, if not already scheduled, should be arranged as expeditiously as possible.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 The statute provides in pertinent part: “(a) . . . Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person to whose interest compensation is claimed. . . . (b) Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice . . . stating that the right to compensation is contested, 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. . . . If the employer or his legal representative fails to file the notice contesting liability on or before the twenty-eighth day after he has received the written notice of claim, the employer shall commence payment of compensation for such injury or death on or before the twenty-eighth day after he has received the written notice of claim, but the employer may contest the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim, provided the employer shall not be required to commence payment of compensation when the written notice of claim has not been properly served in accordance with section 31-321 or when the written notice of claim fails to include a warning that (1) the employer, if he has commenced payment for the alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim, shall be precluded from contesting liability unless a notice contesting liability is filed within one year from the receipt of the written notice of claim, and (2) the employer shall be conclusively presumed to have accepted the compensability of the alleged injury or death unless the employer either files a notice contesting liability on or before the twenty-eighth day after receiving a written notice of claim or commences payment for the alleged injury or death on or before such twenty-eighth day. . . . Notwithstanding the provisions of this subsection, an employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death.” BACK TO TEXT

2 The Motion to Correct sought the addition of findings that would declare the claimant’s Form 30C insufficient to support her Motion to Preclude because (1) its wording was “not consistent with the intent of [§ 31-294c] that a notice of claim be done in plain and simple language” and (2) it was sent to the payroll department at corporate headquarters, rather than its workers’ compensation department, or the Milford field office where the decedent’s job had primarily been based. BACK TO TEXT