AUGUST 19, 2005

The claimant was represented by Jonathan H. Dodd, Esq., Dodd, Lessack, Ranando Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondents were represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141.

This Petition for Review from the August 19, 2004 Finding and Dismissal of the Commissioner acting for the Fifth District was heard March 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.


The claimant, Kerry Austin, has appealed from the August 19, 2004 Finding and Denial of a Motion to Preclude of the Commissioner acting for the Fifth District. We remand the case to the trial commissioner for further proceedings consistent with this opinion.

We begin with a review of the relevant procedural history. The claimant was employed by the respondent at all times pertinent to this case. On April 30, 2002, the claimant filed a Notice of Claim by certified mail to the Cheshire Correctional Institute and to the Eighth District Workers’ Compensation office, which was received on May 2, 2002. Thereafter, the notice was filed by certified mail to the state’s Department of Administrative Services and was received on May 3, 2002. The injured body part on the Notice of Claim was listed as “Hepatitis C” and the notice indicated that the injury was neither an occupational disease nor an injury that resulted from a repetitive trauma. The date of injury was listed as “sometime between approximately 01-02-2001-12-20-2001.”

The respondent contends it filed a Notice of Intention to Contest Liability on June 5, 2002, which was filed more than 28 days from the receipt of the claimant’s Notice of Claim. The respondents filed three additional Notices of Intention to Contest Liability on October 8, 2002, November 15, 2002 and December 4, 2002 respectively, all in excess of the 28-day statutory limit for contesting liability. The claimant filed a Motion to Preclude with the Commissioner on August 6, 2002 contending that the respondent’s June 5, 2002 disclaimer was never served on the claimant and was not filed within the prescribed statutory time period.

The trial commissioner concluded that “[i]n as much as the claimant’s Notice of Claim references possible dates of specific injury which are more than one year prior to the date on which the notice was filed, the jurisdiction of the commissioner to hear this claim may be in question.” Findings, ¶ A. The trier denied the claimant’s Motion to Preclude and ordered the claim to remain open and subject to further orders of the Commission. The claimant has appealed the denial of the Motion to Preclude.

At the February 25, 2004 formal hearing the respondent argued that the Notice of Claim was defective, therefore, there the Commissioner lacked subject matter jurisdiction over the claim. Feb. 25, 2004 Transcript. p. 9-10. In the respondent’s view the claimant had not provided a date of accident which was within one year of the Notice of Claim as required by § 31-294c C.G.S. Respondent’s May 27, 2004 Trial Brief, p. 3. When the issue of subject matter jurisdiction is raised it must be resolved prior to proceeding with the case. Castro v. Viera, 207 Conn. 420, 429 (1988). A trial commissioner must have subject matter jurisdiction over a claim before he or she can make a determination on a Motion to Preclude.Marandino Marandino v. Marandino’s, 3130 CRB-6-95-7 (March 20, 1997) citing Castro, supra at 433; Litke v. Crowell Builders, 11 Conn. Workers’ Com. Rev. Op. 78, 1215 CRB-5-91-4 (May 4, 1993). Here, the trial commissioner took notice of the jurisdictional issue in his findings, however, he left it unresolved. The trial commissioner should have made a finding regarding subject matter jurisdiction prior to ruling on the Motion to Preclude, therefore, we must remand the case for the jurisdictional determination to be made.

For this reason, the case is remanded for further findings and/or proceedings in accordance with this opinion.[1]

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

[1] We also note, the respondent filed a Motion to Dismiss this appeal contending that this board lacks jurisdiction because there has been no final judgment. We do not need to address the respondent’s Motion to Dismiss because the case is being remanded to make an initial jurisdictional ruling. However, we note that this board has jurisdiction to entertain appeals on Motion to Preclude determinations. Marshall v.UTC/Pratt Whitney, 11 Conn. Workers’ Comp. Rev. Op. 204, 1317 CRD-1-91-10
(September 27, 1993).