REGINA GALLO ASH, Dependent Widow of ROBERT M. ASH (Deceased), CLAIMANT-APPELLEE and ROBERT J. ASH, Dependent Minor Son of ROBERT M. ASH (Deceased), CLAIMANT-APPELLEE vs. TOWN OF NEW MILFORD, EMPLOYER, RESPONDENT-APPELLANT

CASE NO. 433 CRD-7-85(a) 433 CRD-7-85(b)Workers’ Compensation Commission
MARCH 26, 1987

Claimant, Regina Gallo Ash, was represented by David Morrissey, Esq.

Claimant, Robert J. Ash, was represented by D. Randall Dibella, Esq., Breckner Dibella, P.C.

Respondents were represented by Michael McKenna, Esq., Pinney, Payne, VanLenten, Burrell, Wolfe Dillman.

This Petition for Review from the November 15, 1985 Finding and Award of the Seventh District Commissioner was heard January 30, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Rhoda Loeb and Robin Waller.

FINDING AND AWARD

The Finding and Award of the trial Commissioner is affirmed and adopted as the Finding and Award of this tribunal.

OPINION

JOHN ARCUDI, Chairman.

Claimants were the dependent widow of the decedent Robert M. Ash, and a minor son from a previous marriage, Robert J. Ash. They were both awarded benefits. The respondent Town of New Milford has appealed. The issues on appeal were; (1) whether the Commissioner erred in granting the claimant-widow’s Motion to Preclude under Sec. 31-297(b) C.G.S. and (2) whether granting the irrebuttable presumption of compensability in her case governed liability also in the minor’s claim. The claimant-widow was married to the decedent April 5, 1981. The Commissioner further found that prior to that marriage the decedent had divorced Joanne Ash, Robert J. Ash’s mother, July 11, 1980.

Regina Gallo Ash filed a proper notice of claim with the Town of New Milford and the Seventh District Commissioner on June 4, 1984 and June 6, 1984 respectively. No disclaimer was filed until July 10, two weeks after the expiration of the statutory twenty day period. Therefore a Motion to Preclude under Sec. 31-297(b) C.G.S. was granted in the November 15, 1985 Finding and Award.

Because a natural disaster occurred flooding the New Milford center May 27, 1984, the town argues that the Sec. 31-297(b) twenty day limitation should not govern as the flood “caused the executive branch of the municipal government, . . . . to effectively cease normal operations and devote its full attention to the disaster.” Several federal precedents are cited. However, these cases seem to have involved the actual shutting down of governmental offices during the emergency. Here the town offices were not closed by the flood. The cases cited are therefore distinguishable and not persuasive.

As to the second issue, Sec. 31-297(b) is clear in creating an irrebuttable presumption of compensability if no disclaimer is filed within the twenty days. Such a presumption makes compensable the injury or death to which it applies. All dependent survivors’ rights derive from that same event or series of events. The injury or death is not divisible. An employer’s failure to meet the statutory time constraints effects compensability for all dependents.

Sec. 31-297(b) was interpreted in Menzies v. Fisher, 165 Conn. 338, (1973).

“The object which the legislature sought to accomplish is plain. Section 31-297(b) was amended to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona-fide claims and narrow the legal issues which were to be contested.” Id. at 343.

To permit a contest of liability for some dependents while it is presumed for others would deny the public policy objectives enunciated in Menzies.

We, therefore, affirm the Finding and Award of the Commissioner below and dismiss the appeal.

Commissioners Rhoda Loeb and Robin Waller concur.

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