Nalband v. Davidson Company, Inc.

The claimant was represented by Ross Lessack, Esq., Dodd, Lessack, Dalton & Dodd, LLC, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondents were represented by Marian Yun, Esq., Law offices of Rosenbaum & Vollono, 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the March 29, 2005 Ruling on Motion to Preclude of the Commissioner acting for the Eighth District was heard January 27, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The instant appeal centers on whether a Notice of Claim was legally sufficient to confer jurisdiction on the Commission and whether a Motion to Preclude was properly granted when the respondents failed to present a Form 43 contesting the claim within the statutory time period under § 31-294c(b) C.G.S. We answer both questions in the affirmative, and therefore dismiss the appeal.

The facts are not in dispute. On June 10, 2003, the claimant filed a Form 30C with her employer, a grocery food distributor based in Cheshire, asserting she had suffered a work related back injury on November 5, 2002 in Belchertown, MA. The claimant’s job duties required her to travel to grocery stores in Connecticut and adjoining states to inspect their stocking situations. The Form 30C was sent via certified mail and received by her employer on June 12, 2003. The respondents did not file a disclaimer of liability within the statutory 28 day period under § 31-294c(b) C.G.S. As a result, the claimant filed a Motion to Preclude on August 4, 2003. The respondents then filed their Form 43 on August 12, 2003.

Following a hearing on January 18, 2005, the commissioner acting for the Eighth District granted the claimant’s Motion to Preclude on March 29, 2005, determining that the notice was sufficient and by failing to disclaim liability, the respondents were deemed to have accepted the claim. The respondents then filed Reasons for Appeal claiming that the Form 30C filed by the claimant was legally insufficient as it failed to provide the street address of the alleged injury. The respondents also filed a Motion for Articulation and a Motion to Correct. Both were denied.1

The respondents argue that there is an issue of subject matter jurisdiction because the claim form lacked an address of injury. However, the legal authority they cite provides little justification for this position. A review of the cases they cite indicate none are on point. Bennings v. State/New Haven Community Correctional Institute, 14 Conn. Workers’ Comp. Rev. Op. 305, 2105 CRB-3-94-7 (September 22, 1995) involved a situation where “no actual claim was filed by the claimant at all, . . . ” Bell v. Dow Corning STI, Inc., 1777 CRB-4-93-7 (January 30, 1995) was a case where the date of injury was wrong. The trial commissioner in Storey v. Hendel Petroleum Co., 3581 CRB-1-97-4 (June 10, 1998) deemed a Notice of Claim which arguably identified the wrong corporate entity sufficient, and granted the Motion to Preclude. We upheld his decision.

In Storey, we articulated the analysis of when notice to an employer is adequate. “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.” Recent appellate precedent indicates that we cannot look to technical deficiencies as grounds to invalidate notice. “The rule of strict compliance by the review [board] is not supported by either plain language or the legislative history of § 31-297(b). To the contrary, § 31-297(b) is remedial legislation that should be liberally construed to accomplish its humanitarian purpose . . . . [a]s a result if the notice of claim is sufficient to allow the employer to make a timely investigation of the claim, it triggers the employer’s obligation to file a disclaimer.” Chase v. Department of Motor Vehicles, 45 Conn. App. 499, 502-203 (1997).2

The respondents state in its brief that in the course of her employment the claimant had to visit approximately 15 retail outlets in the Commonwealth of Massachusetts. Had the Form 30C failed to identify where in Massachusetts the injury occurred the respondents would face an onerous burden trying to investigate the claim, considering there were at least 15 possible locations the injury occurred. However, the Form 30C placed the respondents on notice that the injury occurred in Belchertown, a community of only 12,968 residents http://www.census.gov/census2000/states/ma.html (last visited May 11, 2006). The respondents directed the claimant to visit certain stores in the course of her employment and would have known which ones were in Belchertown.3 In fact, the claimant testified her supervisor joined her at the store where the alleged fall occurred later in the day on November 5, 2002. January 18, 2005 Transcript, p. 31. Considering these facts, the respondents’ argument the Form 30C was so deficient as to prevent them from being able to properly investigate the claim is implausible.4

Since we have concluded the Form 30C was legally adequate, the trial commissioner properly granted the Motion to Preclude since the respondents failed to act within the statutory time limitation to issue their disclaimer. We uphold the order and dismiss this appeal.5

Respondents point out that even after the Motion to Preclude is granted establishing the respondents’ liability for an injury the claimant still must prove disability. The commissioner has not issued an order determining whether the claimant should receive an award for her injuries sustained November 5, 2002 and if so, ascertained the amount of such an award. This matter is remanded to the commissioner for further proceedings to determine what compensation is due the claimant.

Commissioners Michelle D. Truglia and Ernie R. Walker concur in this opinion.

1 The trial commissioner appeared to have granted the Motion for Articulation on September 12, 2005 but on October 20, 2005 re-opened the order to deny the Motion, attributing the prior order to a scrivener’s error. BACK TO TEXT

2 Subsection (b) of § 31-297 C.G.S. was subsequently repealed. The annotation to the Connecticut General Statutes reflects that § 31-294c C.G.S. is the successor statute on notice provisions. We believe the Chase precedent is definitive authority for that statute as well. BACK TO TEXT

3 The record indicates the claimant’s primary responsibility was restocking Stop & Shop and Big Y Supermarkets. She testified she restocked no other grocers. Respondents offer no evidence that there were so many such stores in Belchertown as to make investigation of the claim impractical. BACK TO TEXT

4 The record contains evidence the claimant verbally notified her employers of the fall the day it occurred. See January 18, 2005 Transcript, p. 31. This further undermines the respondents’ notice argument as they had immediate constructive notice of a potential claim and could have commenced an investigation prior to the filing of the Form 30C. BACK TO TEXT

5 The holding in Chase compels a liberal reading of notice requirements to comport with the humanitarian purposes of the Workers’ Compensation Act. Our appellate courts have recently permitted relaxed notice requirements involving other statutes as well. In Salemme v. Seymour, 262 Conn. 728 (2003) the Supreme Court construed the highway defect statute (§ 13a-149 C.G.S.) and determined that legal notice of an alleged highway defect need not include a street address, holding a notice addressed to the Town of Seymour claiming an accident occurred on “Silvermine Road” was legally adequate. While the Supreme Court’s holding regarding notice in Salemme is not dispositive of the notice requirements for a Form 30C, it certainly reflects a philosophy regarding notice requirements at odds with the respondents’ position. BACK TO TEXT