Gorman v. Rogers Corporation

The claimant was represented by Amy Stone, Esq., and Richard L. Gross, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.

The respondents were represented by Terrance Brennan, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review1 from the February 7, 2006 Ruling Re: Motion to Preclude of the Commissioner acting for the Eighth District was heard August 25, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The instant appeal involves a motion to preclude granted regarding a § 31-306 claim. The claim was brought by the surviving spouse of an injured worker, who filed her claim for benefits with her husband’s employer. The employer failed to file a Form 43 contesting the claim within the statutory deadline. Following the granting of the Motion to Preclude, the respondents appealed, arguing the law required that the notice of claim be filed with their law firm. We find no such requirement in the statute, and accordingly, dismiss this appeal.

In his ruling on the Motion to Preclude which was issued on February 7, 2006, the trial commissioner found the following facts, which are not disputed by the parties. The claimant’s husband, Walter J. Gorman, filed a Form 30C with the respondent Rogers Corporation on May 19, 2004, asserting that exposure to asbestos and other industrial irritants had resulted in lung cancer. The law firm of McGann, Bartlett and Brown, LLC appeared in this matter and their attorney filed a timely Form 43 on May 28, 2004 contesting the claim. Mr. Gorman died on September 3, 2004 and on December 22, 2004 his widow, Barbara A. Gorman (the claimant) filed a Form 30C with the Rogers Corporation seeking dependent widow’s benefits under § 31-306 C.G.S. The claimant did not file her Form 30C with McGann, Bartlett and Brown. The respondents had their attorney file a Form 43 contesting the dependent widow’s claim on January 26, 2005. On January 27, 2005 the claimant filed a Motion to Preclude asserting that the Form 43 was untimely as per § 31-294c(b) C.G.S. The respondents contested the Motion to Preclude solely on the issue before us in this appeal, asserting that the claim should have been filed on the respondents’ legal representative. The Commissioner acting for the Eighth District granted the Motion to Preclude and the respondents appealed.

The respondents rest their argument on the holding of Schreck v. Stamford, 250 Conn. 592 (1999). We can distinguish this decision as the Schreck case did not involve a claim for § 31-306 benefits or a claim filed under § 31-294c(a) C.G.S. We believe another precedent, Denicola v. Stop & Shop Companies, Inc., 12 Conn. Workers’ Comp. Rev. Op. 393, 1919 CRB-3-93-12 (September 6, 1994), aff’d, 40 Conn. App. 916 (1996) is on point and compels us to uphold the trial commissioner.

In Schreck the Supreme Court construed § 31-300 C.G.S. and § 31-301(a) C.G.S. as requiring a party’s attorney to receive notice following a formal hearing and computing the appeal period from the time such notice was sent. Although neither statute specifically required a party’s counsel receive notice the court decided “[w]e are persuaded, therefore, that, in cases in which a party is represented by counsel, the ten day appeal period prescribed by § 31-301(a) begins to run on the date that notice of a commissioner’s decision is sent to the party’s counsel, rather than to the party.” Id., 600-601.

Factually, the first point of difference is that unlike Schreck, this notice involved a new claim. As was pointed out in Tardy v. Abington Constructors, Inc., 71 Conn. App. 140 (2002), it was determined that when a dependent files a claim for § 31-306 C.G.S. benefits that this constitutes a new claim requiring separate notice, and requiring the respondents to file a separate notice to contest. Id., 144. A review of the facts of Tardy indicates that in that case it does not appear the claimant filed a notice of claim with the respondents’ legal representative, instead filing directly with the employer. Id., 143. The Appellate Court upheld the Form 30C as valid under § 31-294c(a) C.G.S. and required the respondents to file a Form 43 contesting liability or face a motion to preclude. Id., 150-153.

Since a claim for § 31-306 benefits is a new claim we must look to our precedents regarding notice requirements for claimants commencing new claims under § 31-294c(a). In Denicola, supra, the claimant served the supermarket where he worked and the corporate headquarters of Stop and Shop with his Form 30C, and not the respondent’s corporate insurance department. When a timely Form 43 was not filed by the respondents, a Motion to Preclude was filed by the claimant and granted by the trial commissioner. The respondents appealed to this board on a similar theory to the argument advanced by the respondents herein, specifically, that the claimant was obligated to serve his claim on the corporate insurance department. The CRB dismissed the appeal determining, “we find the respondents’ argument that the claimant should have sent a notice of claim to the respondent-employer’s corporate insurance department to be without merit.” Id. In Denicola we concluded the statutes required notices to be served at a respondent’s last known residence or place of business.

It is uncontroverted that the claimant served Rogers Corporation with a notice of claim at its place of business. Respondents contend the claimant knew the respondents were represented by counsel. However, since this is a new claim this argument is not on point. Even if we were to look beyond the plain language of the notice statute, the fact is the respondents could have retained different counsel for the § 31-306 action. The claimant cannot be presumed to know who the respondents will retain as legal representative prior to filing his or her claim. Based on our reasoning in Denicola we conclude that service of a notice of claim at the employer’s office complies with the statute and properly engaged the jurisdiction of this Commission over the claim.2

We wish to acknowledge the respondents’ arguments to the contrary and explain why we find them unpersuasive. They place great weight in the definition of “employer” in § 31-275(10). ‘“Employer’ means any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay, or the legal representative of any such employer . . . .” (Emphasis added) We believe this is irrelevant for a number of reasons. The definitional statute is written in the disjunctive and the specific term “legal representative” does not appear in subsection (a) of 31-294c regarding the filing of claims.3 “The use of the disjunctive or between the [multiple] parts of the statute indicates a clear legislative intent of separability.” Davis v. Manchester Health Center, Inc., 88 Conn. App. 60, 68 (2005). The absence of the term “legal representative” from subsection (a) of the statute and from the overall notice statute cannot be considered superfluous. “Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed . . . .” Hatt v. Burlington Coat Factory, 263 Conn. 279, 310 (2003).

We believe the case of Walter v. State, 63 Conn. App. 1 (2001) is dispositive of the respondents’ effort to go beyond the plain language of the notice statutes in this instance. There the appellant argued a disclaimer was inadequate when it was addressed to the deceased employee and not the surviving dependent claimants. This argument was rejected.

Therefore, based on the statutes and the case law governing the filing of claims with this Commission we cannot find a duty exists requiring claimants to serve a legal representative with a notice of claim.4

We affirm the Motion to Preclude and dismiss this appeal.

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur in this opinion.

1 We note that an extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 Further support for this holding is the precedent in Morgan v. Hot Tomato’s, Inc. DIP, 4377 CRB-3-01-3 (January 30, 2002) where we distinguished the filing of an appeal from the filing of a claim. “Section 31-294c(b), on the other hand, is much more clearly unilateral in its purpose: to protect the rights of claimants, thereby promoting the humanitarian spirit of the Act.” BACK TO TEXT

3 The plain language of the notice of claim statute, § 31-294c(a) C.G.S. requires the notice of claim to “be given to the employer or any commissioner . . . .” The term “legal representative” does not appear until § 31-294c(b) C.G.S. where either “the employer or his legal representative” must file a timely Form 43 contesting the filed claim or face a Motion to Preclude. BACK TO TEXT

4 We note the outcome of this opinion parallels the procedure in civil litigation wherein a suit is commenced by service against the defendant directly (§ 52-45a C.G.S. et seq) whereas copies of an appeal must be filed upon counsel of record (Practice Book § 63-3). BACK TO TEXT