CASE NO. 3347 CRB-1-96-5 CLAIM NO. 100005228Workers’ Compensation Commission
NOVEMBER 4, 1997
The claimant was represented by Albert J. McGrail, Esq., McEleney
The respondents were represented by Kevin Maher, Esq., Maher
This Petition for Review from the May 21, 1996 Finding and Dismissal of the Commissioner acting for the First District was heard February 28, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN.
The claimant has petitioned for review from the May 21, 1996 Finding and Dismissal of the Commissioner for the First District. She argues on appeal that the commissioner improperly determined that she did not furnish timely notice of her claim under § 31-294 C.G.S. We affirm the trial commissioner’s decision.
As noted in a previous decision on this matter, the claimant and respondents stipulated as to certain facts, including that the decedent was killed in the course of his employment with the respondent on May 24, 1979, while on temporary assignment in Rochester, New York. SeeAllingham v. Burns International Security,14 Conn. Workers’ Comp. Rev. Op. 333, 1977 CRB-1-94-2 (Sept. 20, 1995) (case was remanded to trial commissioner for further proceedings because the original trier went beyond the stipulation of facts to dismiss this claim for lack of subject matter jurisdiction without notifying the parties it was still at issue). The only issue not agreed to in the stipulation was the adequacy of notice under § 31-294.
As the trial commissioner noted, § 31-294c (a) requires that written notice of a claim for compensation be filed within one year of the date of the accident. This statute is jurisdictional in nature, and prevents this Commission from entertaining a claim that has been filed in an untimely manner. Otero v. Bridgeport,13 Conn. Workers’ Comp. Rev. Op. 248, 250, 1713 CRB-4-93-4 (April 17, 1995). In this case, the claimant had to file a claim within one year of May 24, 1979.
The commissioner found that the only notice provided before May 24, 1980 was an October 11, 1979 letter from Attorney Thomas M. Kablik to Robert Guthy, Manager, Group Human Resources, Burns International Security Services, Inc. It states:
Re: William K. Allingham, deceased employee
Pursuant to our phone conversation today, I am requesting appropriate forms for filing a workmens compensation claim concerning the death of Mr. William K. Allingham who died while on assignment in Rochester, New York, on May 24, 1979. Also, I would request a statement as to the nature of Mr. Allingham’s assignment to Rochester, its duration, and a description of his usual duties and job local apart from this assignment.
Thank you for your anticipated cooperation. This letter also confirms your representation that apart from the life insurance proceeds payable to Mrs. Allingham, no further benefits, such as pension, etc., are payable in connection with Mr. Allingham’s employment, in addition to any possible workmens compensation claim.
In response, Guthy sent a letter to Kablik detailing the decedent’s employment duties, past wages, and the location of his office in Brighton, MA. He also informed Kablik that their representative in Massachusetts for workers’ compensation matters was the Winchester, MA law firm of Buckler, Irvin Graf, and added that he was going to ask Mr. Buckler to provide Kablik with forms needed for filing a workers’ compensation claim on the decedent’s behalf. (Emphasis added.)
The commissioner found that Kablik’ s letter was not a proper notice of claim, as it does not state the name and address of the person in whose interest compensation is claimed. She did not accept the claimant’s argument that it is clear from that letter that Kablik was representing Mrs. Allingham. Instead, the letter merely requests the necessary forms for filing such a claim, and does not indicate who Kablik represents. She dismissed the claim for lack of timely notice, and the claimant appealed to this board.
The claimant argues that her notice was sufficient under Black v.London Egazarian Associates, Inc., 30 Conn. App. 295 (1993). There, our Appellate Court held that a letter from a claimant widow to her late husband’s employer stating that “I would like to advise you that I intend to file for Workmen’s Compensation with regard to the death of my husband, who died of heart attack while at work on Oct. 5th 1984,” was sufficient notice under the Act despite its use of the phrase “intend to file.” “The purpose of § 31-294, in particular, is to alert the employer to the fact that a person has sustained an injury that may be compensable . . . . The statute did not require the plaintiff to draft her notice with absolute precision.” Id., 303.
In her decision, the trial commissioner made it a point to contrast that letter with the one in this case, which simply requests forms for filing a claim without providing information as to who the attorney represents, whether he intends to file a claim, and where he intends to file it (it could have been New York, Massachusetts, or Connecticut here). We agree that these circumstances differ from those in Black. The letter from Kablik to Guthy mentions a “possible” workers’ compensation claim, but does not specify where it would be filed. Moreover, Guthy’s response letter lists a Massachusetts law firm as his employer’s workers’ compensation counsel, and gives no hint that a Connecticut workers’ compensation claim was understood to be a possibility in this case.
This board has recently considered several cases in which a proper Form 30C was not filed. See, e.g., Otero, supra (claimant filled out accident reports with police department, but did not file a notice of claim for almost five years); Gaffney v. Stamford,15 Conn. Workers’ Comp. Rev. Op. 257, 2219 CRB-7-94-11 (May 24, 1996) (only first report of injury filed); Cislo v. Shelton,16 Conn. Workers’ Comp. Rev. Op. 14, 2291 CRB-4-95-2 (Oct. 4, 1996) (letter to police chief informing him of ongoing treatment for hypertension and asking him to take “any necessary steps”). In each case, we discussed how important it was that the employer was made aware that the claimant was seeking relief under Chapter 568. “A first report of injury is not a claim for compensation, and generally does not put the employer on notice that the claimant is seeking the remedies provided by the Workers’ Compensation Act.” Gaffney, supra. “Unless it is clear that a claim is being pursued, an employer cannot be expected to have reasonable notice that an investigation of the claim should be commenced.” Cislo, supra. “[T]he claimant in this case did not give sufficient notice that he was considering filing a workers’ compensation claim by merely reporting his injury to his employer.” Otero, supra, 250.
This case is substantively no different from those cases. Although the employer might have had some inkling that a workers’ compensation case was being considered by someone on behalf of the decedent, it would have had no way of knowing that the claimant was ready to take action from the letter her attorney sent. Only the preparatory action of requesting forms was discussed in the letter. Moreover, the case could just have easily been on behalf of the decedent’s estate, instead of the claimant. Most importantly, however, there was no way for the employer to know which jurisdiction the action was going to be filed in, if at all. The laws differ from state to state, and so do the procedures that the employer and its insurer would have had to follow. The 1979 letter from Attorney Kablik was simply not sufficient to constitute adequate notice of a Connecticut workers’ compensation claim under § 31-294c.
The trial commissioner’s decision is affirmed.
Commissioners James J. Metro and John A. Mastropietro concur.