BENSON v. TOWN OF FARMINGTON, 407 CRD-6-83 (4-3-87)


CHARLES BENSON, CLAIMANT-APPELLANT vs. TOWN OF FARMINGTON, EMPLOYER, RESPONDENT-APPELLEE

CASE NO. 407 CRD-6-83Workers’ Compensation Commission
APRIL 3, 1987

The claimant-appellant was represented by David J. Morrissey, Esq.

The respondent-appellee was represented by Edward M. Richter, Esq., and Joseph Hammer, Esq., Day, Berry Howard.

This Petition for Review from the April 30, 1985 Finding and Dismissal of Claim of the Commissioner of the Sixth District was heard February 27, 1987 by a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and A. Thomas White.

FINDING

1-15. Paragraphs 1 through 15 of the Sixth District Finding are made paragraphs 1 through 15 of this Division’s Finding.

The matter is remanded for further proceedings to ascertain additional facts for action on claimant’s Motion to Preclude in accordance with the accompanying opinion.

OPINION

JOHN ARCUDI, Chairman.

Claimant was a member of the Farmington paid municipal police department since April 1, 1976. On or about October 27, 1982, he filed a claim for hypertension benefits under Sec. 7-433 C.G.S. A few days thereafter, the town filed a timely “Notice to Compensation Commissioner and Employee of Intention to Contest Liability to Pay Compensation” (Form 43-67). However, the employer failed to list claimant’s untimely filing contrary to Sec. 31-294
C.G.S. as the reason for the contest of liability. That defense was not raised until the August 22, 1983 hearing.

Claimant has appealed the Sixth District’s April 30, 1985, Finding and Dismissal. The Commissioner’s denial of the claim was based on the failure to conform to Sec. 31-294 and the consequent lack of jurisdiction. Claimant’s appeal argues the employer was precluded from asserting the defense of lack of jurisdiction as it had failed to raise the defense in its “Notice to . . . Contest Liability. . . .” (Form 43-67). We find LaVogue v. Cincinnati, Inc., 9 Conn. App. 91 (1986) (per curiam) to be controlling authority.

LaVogue, supra, held that where the employer failed to file a notice to contest liability pursuant to Sec. 31-297(b), the employer was precluded from asserting the defense of lack of subject matter jurisdiction. LaVogue, supra, and Menzies v. Fisher, 165 Conn. 338 (1973), hold that failure to specify a defense under Sec. 31-297(b) precludes a later assertion of that specific defense at any point in the contest. However, this ruling presumes that the notices by the parties were filed in accordance with the procedure prescribed by Sec. 31-321
C.G.S.

We, therefore, remand this matter to the trial Commissioner for a determination of whether the notice served by the claimant was served in accordance with Sec. 31-321 C.G.S. If the Commissioner concludes that the method of serving said notice complied with Sec. 31-321, then the employer is precluded from asserting the defense of lack of subject matter jurisdiction in the instant matter.

Commissioners Robin Waller and A. Thomas White concur in this opinion.