BUSH v. QUALITY BAKERS OF AMERICA, 132 CRD-7-82 (10-4-83)


ARLYNE BUSH, Dependent widow of ROY BUSH (Deceased), CLAIMANT-CROSS APPEAL APPELLANT vs. QUALITY BAKERS OF AMERICA, EMPLOYER and TRAVELERS INSURANCE COMPANY, INSURER, RESPONDENTS-APPELLANTS

CASE NO. 132 CRD-7-82Workers’ Compensation Commission
OCTOBER 4, 1983

The Claimant-Cross Appeal Appellant was represented by Gerard S. Spiegel, Esq.

The Respondents-Appellants were represented by Douglas L. Drayton.

This Petition for Review from the January 26, 1982 Decision of the Commissioner for the Seventh District, was argued December 9, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, A. Paul Berte and Rhoda Loeb.

FINDING AND AWARD

1. On May 2, 1980, a contract of employment existed between Roy Bush, hereafter referred to as the decedent, and the Respondent Employer.

2. On said date, the Respondent Employer had fully insured its liability under the Workers’ Compensation Act with the Travelers Insurance Company.

3. On said date, the decedent’s average weekly wage was $1,044.00.

4. On said date, the decedent’s occupation was Vice President in charge of purchasing of the respondent employer.

5. On said date, at or shortly past noon, the decedent and Bernard Jakacki, president of the respondent employer, pursuant to a previously arranged appointment, left the premises of respondent employer and proceeded to engage in a game of racquetball.

6. The racquetball game was played at the Stamford Racquetball Club.

7. At the conclusion of the racquetball game, on the way back to the locker room, the decedent indicated that he wasn’t feeling well, that he thought he might have indigestion, and he wished to rest.

8. Mr. Jakacki left the premises of the racquetball club to obtain some anti-acid tablets for the decedent, and on his return found that the decedent was unconscious, and that an ambulance had been requested.

9. The decedent was taken by ambulance to the Stamford Hospital where he was dead on arrival at 3:15 p.m.

10. The cause of decedent’s death was given by the Medical Examiner, and appears on the death certificate as Cardiac Arrest, due to or as a consequence of arteriosclerotic heart disease and a probable myocardial infarction.

11. On November 26, 1980, the attorney for the claimant widow mailed a written notice of claim under the Compensation Act to the respondent employer, via certified mail.

12. Said written notice of claim was addressed as follows: “Quality Bakers of America 70 Riverdale Avenue Greenwich, Connecticut 06830 Attn: Mr. Bernard C. Jakacki”

13. Said written notice was received by some employee of respondent employer on December 5, 1980, but the same was not received by or brought to the attention of Mr. Jakacki, himself.

14. Respondents failed to file a notice of intention to contest liability within twenty days after having received written notice of claim, as provided by section 31-297(b), Connecticut General Statutes.

15. It is found that the decedent died as a result of a heart attack induced by the strenuous activity of said racquetball game.

16. It is found that the respondents have failed to comply with the requirements of section 31-297(b), and they are, accordingly, conclusively presumed to have accepted the compensability of decedent’s death.

17. The claimant’s widow was married to the decedent on June 3, 1956, and there were two children of said marriage, Jason Keith Bush, born on January 28, 1959, and Stacy Ellen Bush, born on August 6, 1962. At the time of death, the decedent was living with and supporting the claimant and his children.

18. The claimant widow has paid the decedent’s burial expenses which were in excess of the statutory allowance.

19. Claimant’s attorney, during the Formal Hearing, made a Motion to Preclude, on the grounds that the respondents had failed to disclaim liability herein.

WHEREFORE IT IS ORDERED, DECREED, AWARDED AND ADJUDGED

That;

A. Respondents be and they are hereby PRECLUDED from contesting compensability of the decedent’s death.

B. Respondents pay to the claimant the statutory burial allowance of $1,500.00.

C. Respondents pay to the claimant, Arlyne Bush, as presumptive dependent spouse of the decedent, Roy Bush, the sum of $261.00 per week, commencing on May 3, 1980, and continuing thereafter until her death or remarriage, together with applicable cost of living increments as the same become due from time to time.

D. Respondents pay a $200.00 fee for the testimony of Dr. Sedat Ozcomert.

This Finding and Award was written by Chairman John Arcudi for the entire panel.

OPINION

JOHN ARCUDI, Chairman.

In this appeal appellants mount a constitutional attack on the conclusive presumption of Section 31-297(b), C.G.S.[1] We had previously denied their Motion for Reservation under Section 31-324 in our November 9, 1982 decision. Decedent Roy Bush, an employee of the Respondent Quality Bakers of America died May 2, 1980 as a result of cardiac arrest suffered after playing a racquetball game at a private health club during the lunch hour with the president of said Respondent. His dependent widow Arlyne Bush mailed a written notice of claim for survivors’ benefits via certified mail to the Appellant Employer herein November 26, 1980. The said Respondent Employer failed to file a notice of intention to contest liability by December 16, 1980, and therefore the Commissioner entered a finding of compensability under the conclusive presumption established by Section 31-297(b). Appellants argue that such a conclusive presumption is violative of the due process clause in the 14th Amendment of the U.S. Constitution and in Article First, Section 8 of the Connecticut Constitution respectively.

As stated in our decision denying reservation, the Connecticut Supreme Court has considered Section 31-297(b) before, Menzies vs. Fisher, 165 Conn. 338 (1973), Balkus vs. Terry Steam Turbine Company, 167 Conn. 170 (1974), Adzima vs. UAC/Norden Division, 177 Conn. 107
(1979), although the constitutional issue was not addressed as such in those cases. Further, the Appellate Session, Superior Court addressed the issue in DeLeon vs. Jacob Brothers, Inc., 38 Conn. Sup. 331 (10/30/81) as follows:

“We conclude that the statute in question is economic in nature, that it articulates a legitimate legislative purpose and that the means adopted to produce the result bear a rational relationship to the stated purposed (sic) of the statute . . . When examined within the context, the legislation is found to be constitutionally valid.”

Respondents’ brief delivers a frontal assault on this language in DeLeon. Their contention is that it is inconsistent with Ducharme vs. Putnam, 161 Conn. 135 (1971).

We do not agree. Menzies, Balkus, Adzima and DeLeon are valid binding precedents which we must observe. That provides a sufficient basis for us to affirm the order of the Commissioner below, although we have amended the Finding and Award by which he arrived at his conclusion.

But Appellants present an alternative argument to the constitutional one. They rely on Commissioner’s Finding #21. “It is found that decedent’s death did not arise out of and during the course of his employment,” and contend that such a finding deprives the Commissioner of subject matter jurisdiction to hear the matter. We discussed this jurisdictional argument in Cortes vs. Allegheny Ludlum Steel Corp., 61 CRD-3-81, 1 Conn. Workers’ Comp. Rev. Op. 173 (1982).

There we said:

“Appellants counter . . . the forum’s lack of jurisdiction may be raised at any stage of proceedings. The fallacy in that contention is that the General assembly created the Workers’ Compensation jurisdiction in 1913. In 1967 that same General Assembly expanded that jurisdiction, Public Acts 1967, No. 842, Sec. 7. Although no formal pleadings as such are required in Workers’ Compensation proceedings, 31-297(b) barred an employer from raising any defenses which had not been specially pleaded within twenty days of written notice of claim. Thus Justice Shapiro speaking for the majority stated: `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. To narrow the scope of the controversy would lighten the burden on the claimant in terms of legal expenses, a result which the legislature plainly desired to accomplish by its 1967 amendments. See 12 H.R. Proc., Pt. 9, 1967 Sess., pp. 4037-38; cf. General Statutes 31-298, as amended by Public Acts 1967, No. 242. A general denial that a claimant has a compensable injury reveals no specific defense or reason why the claim is contested. Such a conclusionary statement would leave open numerous possible defenses, such as a defense of lack of employer-employee status, a defense that the death was due to suicide or to homicide or a claim that death was caused by an intervening injury . . .

Menzies vs. Fisher, supra, 343-344.'”

Cortes vs. Allegheny Ludlum, supra, 178-79.

Thus, the Respondents-Appellants reliance on the Walsh and Rehtarchik line of cases was effectively eliminated by the 1967 legislation which forces Respondents to plead all special defenses within twenty days or be conclusively presumed to admit liability under Section 31-297(b). There is also a further flaw illuminated by the Finding we adopt in this case. Once the District Commissioner concluded that Sec. 31-297(b) was applicable and that no special defense had been filed within the allotted time period, then he was no longer permitted to make any factual exploration or finding concerning such a potential defense. He was bound simply to find compensability. Liability and the subordinate facts concerning liability were no longer litigable questions subject to the Commissioner’s fact finding capacity. The essence of the 31-297(b) statutory presumption lies in the elimination of litigability and the need for the Commissioner to make a Finding concerning compensability. The most that Claimant need to do in such a situation is to demonstrate a prima facie case. A similar situation arises in the courts after a default judgment is entered.

The decision of the Seventh District Commissioner is affirmed for the reasons stated, and the Commissioner’s Finding is amended as indicated.

Commissioners Berte and Loeb join in this opinion.

[1] Section 31-297(b) Hearing of claims. 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.