JAMES BARNETT, CLAIMANT-APPELLANT vs. TOWN OF STAFFORD, EMPLOYER and HARTFORD INSURANCE GROUP, INSURER, RESPONDENTS-APPELLEES

CASE NO. 219 CRD-1-83Workers’ Compensation Commission
MARCH 2, 1987

Claimant was represented by Irving H. Rosenthal, Esq.

Respondents were represented by Douglas L. Drayton, Esq., Pomeranz, Drayton Stabnick.

This Petition for Review from the March 23, 1983 Finding and Dismissal entered by the Commissioner in the First District acting for the Second District was heard in two separate proceedings. The first proceeding was held October 26, 1984 and the second held May 2, 1986. Both proceedings were heard by a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Edward F. Bradley and Gerald Kolinsky.

FINDING AND AWARD

1-11. Paragraphs 1 through 11 of the trial Commissioner’s Finding and Dismissal of Claim are adopted as paragraphs 1 through 11 of this Division’s Finding and Award.

WHEREFORE the claim for benefits due to the September 26, 1981 injury is dismissed.

OPINION

JOHN ARCUDI, Chairman.

Claimant’s first issue on appeal relates to 31-297(b), C.G.S.[1] and the First District Commissioner’s denial of his Motion to Preclude. Claimant had sent his notice of claim certified mail return receipt requested, and it was received by the respondent town October 9, 1981. The town filed a disclaimer received October 22, 1981 within twenty days. The disclaimer gave as a reason for denying the claim “Claimant not an employee within the meaning of Sec. 31-275 of the Connecticut General Statutes.” Claimant argues that the disclaimer did not state a sufficiently specific defense as required by Menzies v. Fisher, 165 Conn. 338
(1973). We disagree. That opinion at page 344 clearly implies that a stated “defense of lack of employer-employee status” would satisfy the specificity requirement. Although the words may not be precisely the same, any fair reading of the disclaimer language indicates that the town was raising such a defense here. Bush v. Quality Bakers of America, 2 Conn. App. 363
(1984), and LaVogue v. Cincinnati, Inc., 9 Conn. App. 91
(1986) cert. denied 201 Conn. 814 (11/25/86) held that the jurisdictional grounds cited by the Commissioner as reasons for denial of the Motion to Preclude were incorrect. Nonetheless we affirm his denial for the reasons here stated, i.e. that a sufficiently specific defense was filed within the statutory period.

However, involved in the jurisdictional determinations are the remaining issues argued by the claimant. If he was an employee, as defined by 31-275(5) C.G.S.[2] he would be entitled to the benefits of the Act. The decision below sustained the town’s position that he was not an employee but an appointed public official, an Assistant Dog Warden of the Town of Stafford. Sec. 22-331 C.G.S prescribes the manner of appointment of dog wardens and assistant dog wardens. The claimant was appointed by the Selectman of the Town of Stafford and certified to the position February 2, 1981 in accordance with the statute. There never was a vote to classify him as an employee under 31-275(5).

Positions in municipal and state government in Connecticut and the rest of the nation have multiplied at an exponential rate over the last five decades. Consequently, it may seem anachronistic that a municipal agent whose non-policy making relatively menial duties place him far down in the scale of public employment be excluded from coverage under the Act. However, the anachronism lies in the statutes and in a venerable line of judicial authority, e.g., Sibley v. State, 89 Conn. 682
(1915), McDonald v. New Haven, 94 Conn. 403 (1920), Burrell v. City of Bridgeport, 96 Conn. 555 (1921), Kelly v. Bridgeport, 111 Conn. 667 (1930). It is for the legislature to remedy that exclusion, as it has already done for policemen and firemen and members of the General Assembly. We cannot.

The decision of the Commissioner denying the claim is affirmed.

Commissioners Edward F. Bradley and Gerald Kolinsky concur.

[1] Sec. 31-297(b) Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.
[2] Sec. 31-275(5) “Employee means any elected or appointed official or agent of any city, town or borough, upon vote of the proper authority of such city, town or borough “