CASE NO. 2170 CRB-7-94-10Workers’ Compensation Commission

The claimant was not represented at oral argument. Notice sent to Joseph N. Tauber, Esq.

The respondents were represented by Paul M. Cramer, Esq., Howard, Kohn, Sprague Fitzgerald.

This Petition for Review from the September 29, 1994 Amended Finding and Dismissal of the Commissioner acting for the Seventh District was heard January 12, 1996 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Robin L. Wilson and Angelo L. dos Santos.



The claimant has petitioned for review from the September 29, 1994 Amended Finding and Dismissal of the Commissioner acting for the Seventh District. He argues on appeal that the trial commissioner improperly dismissed his claim for benefits. We affirm the trial commissioner’s decision.

First, we must resolve the respondents’ Motion to Dismiss. The claimant filed a timely petition for review on October 7, 1994, along with a Motion to Correct. Both of the claimant’s requested corrections were denied on November 15, 1994. The claimant then filed Reasons for Appeal on November 23, 1994. Meanwhile, the respondents, who claim not to have received notice of the petition for review until October 25, 1994, filed a motion to dismiss the claimant’s appeal pursuant to Practice Book § 4056 on November 4, 1994, protesting that the claimant failed to comply with Admin. Reg. § 31-302-2 by filing Reasons of Appeal within ten days of the date he filed his petition for review.

Practice Book § 4056 provides that a motion to dismiss an appeal based on failure to timely file papers must be filed “within ten days after the filing of the appeal . . . or if the ground alleged subsequently occurs, within ten days after it has arisen.” If the motion to dismiss is timely, this board may then consider dismissing the appeal. See Practice Book § 4055; see also § 31-301 (e) C.G.S. (procedure in appealing commissioner’s decision is the same as procedure used in appeals from superior court decisions, where applicable). If the appellee fails to move for dismissal within the ten-day period, the defect is waived. Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 698 (1987).

Here, the claimant’s Reasons for Appeal became tardy on October 17, 1994. The respondents’ Motion to Dismiss was not filed until November 4, 1994, however, more than ten days later. Although the respondents allege that they did not receive notice of the appeal until October 25, 1994, the claimant has produced an affidavit stating that a copy of the petition for review was mailed to the respondents on October 7, 1994. The petition for review also contains a certification from the claimant’s counsel that copies were mailed to all parties of record. Because it is unclear that the respondents’ Motion to Dismiss was timely filed, and the respondents have shown no prejudice from the late Reasons of Appeal (which were filed soon after the Motion to Correct was ruled on by the trial commissioner), we decline to dismiss the claimant’s appeal for this relatively minor procedural defect. See Mendoza v. Raposo, 2172 CRB-7-94-10 (decided Jan. 26, 1996) (CRB admonished counsel for failure to follow procedural regulations, but addressed merits of case). Equity seldom favors the disposition of cases on technicalities, as this situation illustrates.

The merits of this case concern the trial commissioner’s dismissal of the instant claim. The claimant and his brother are partners in the respondent employer Altamura Landscaping. The claimant alleges that he suffered a compensable back injury while unloading a tree from a truck sometime between November 7 and November 16, 1990. There was conflicting testimony regarding the exact date of injury; while the claimant alleged that he could not pinpoint the date of injury, and that he continued to work until the job was completed on November 16, 1990, the claimant’s father testified that the date of the accident was November 15, 1990, and that his son could not come to work the next day due to the pain. It is certain that the claimant did not seek medical attention for several months. He eventually sought treatment with Dr. Prokop, who sent the claimant to physical therapy, and forwarded his medical bills to the Connecticut Insurance Group, the agent of the respondent insurer National Grange.

On June 10, 1991, the agent sent a letter to the claimant telling him that they could not process his bills until he filed a First Report of Injury. Dr. Prokop treated the claimant again on October 29, 1991, and told the claimant that his bills had not been paid. The doctor sent a First Report of Injury (FRI) directly to the insurer, which was date stamped November 8, 1991 by National Grange’s Auburn, Massachusetts office, and returned to the claimant for completion. He signed the form on November 27, 1991, and returned it to National Grange.

The commissioner concluded that the claimant “may have sustained an injury to his back while working at some date in November 1990,” but did not file a Form 30C with either his brother, the company offices of Altamura Landscaping, or the Workers’ Compensation Commission. The claimant merely forwarded reports of medical care and bills to National Grange, who did not pay the bills for either the physical therapy or Dr. Prokop’s treatment. This was evidently not sufficient to satisfy the one-year notice requirement of § 31-294c in the opinion of the commissioner, as she dismissed the claim.

The claimant argues in his brief that the trial commissioner erred by not finding that notice to the insurance agent was equivalent to notice to the insurer, and that she erred by concluding that the claimant failed to file a timely claim.[1]
At the time of the alleged injury, § 31-294 [now §31-294c] C.G.S. provided that a workers’ compensation claim could not be maintained “unless a written notice of claim for compensation is given within one year from the date of the accident . . . which caused the personal injury. . . . Such notice 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 therefrom, . . . and the name and address of the employee and of the person in whose interest compensation is claimed.” The purpose of this requirement is to ensure that an employer is aware that an employee has sustained a potentially compensable injury, and that such person is claiming or proposes to claim workers’ compensation benefits. Black v.London Egazarian Associates, Inc., 30 Conn. App. 295, 303 cert. denied, 225 Conn. 916 (1993). Compliance with the one-year limitation period is a necessary prerequisite to the subject matter jurisdiction of this Commission, although substantial compliance with the notice content requirements will toll the statutory period as long as the purpose of the statute has been fulfilled. Hayden-Leblanc v. New London Broadcasting,12 Conn. Workers’ Comp. Rev. Op. 3, 4, 1373 CRD-2-92-1 (Jan. 5, 1994).

The cases in which the doctrine of substantial compliance has been applied, however, have been cases in which the trial commissioner found that the elements of the notice requirement had been satisfied under all the circumstances. Hayden-Leblanc,
supra; Yuknat v. State, 3 Conn. Workers’ Comp. Rev. Op. 43, 274 CRD-2-83 (March 19, 1986). Thus, the factfinding authority and discretion of the trial commissioner factored into our decision. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988);Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Here, the commissioner specifically found that proper notice was not given to the employer or to the Workers’ Compensation Commission. Instead, reports of medical care and bills were forwarded to the insurer, along with a partially completed FRI; there was also confusion surrounding the exact date of injury.

In recent cases such as Gaffney v. Stamford, 2219 CRB-7-94-11
(decided May 24, 1996), and Blackman v. Connecticut Natural GasCorp., 14 Conn. Workers’ Comp. Rev. Op. 155, 1857 CRB-1-93-9
(June 27, 1995), trial commissioners have rejected claimants’ arguments that their failure to comply with the terms of §31-294c should be excused based on their individual circumstances. This board has affirmed those decisions because the ultimate determinations involved the credibility of the witnesses and evidence. The instant case is no different. It was reasonable for the trial commissioner to conclude from the record that the information forwarded by the claimant to National Grange did not substantially comply with the notice content requirements of § 31-294, and we may not second-guess her factual findings on appeal. Webb, supra.

The trial commissioner’s decision is affirmed.

Commissioners Robin L. Wilson and Angelo L. dos Santos concur.

Lorraine Lockery, Administrative Hearings Lead Specialist, Compensation Review Board Workers’ Compensation Commission

[1] The claimant also argues that the commissioner erred by finding that an alleged 1992 fall-down incident occurring at the claimant’s home was “not found to be related” to the November 1990 alleged injury. The respondents agreed in their brief that the issue of the compensability of the April 1992 injury was not before the Commissioner at the formal hearing, as the only issue was the compensability of the 1990 alleged injury. We agree that the 1992 injury was not at issue in this case, and construe the commissioner’s “finding” as a mere advisory statement that no conclusion was reached regarding the relationship of the 1992 injury to the alleged injury at issue here. See Southard v.Southard Development, 13 Conn. Workers’ Comp. Rev. Op. 348, 1891 CRB-4-93-11 (April 27, 1995).