CONERLY v. IBM, NO. 4619 CRB-7-02-12 (12-29-2003)

DARRELL CONERLY, CLAIMANT-APPELLANT v. IBM, EMPLOYER, and, LIBERTY MUTUAL INSURANCE, INSURER, RESPONDENTS-APPELLEES

CASE NO. 4619 CRB-7-02-12 CLAIM NO. 700125198Compensation Review Board WORKERS’ COMPENSATION COMMISSION
DECEMBER 29, 2003

The claimant, Darrell Conerly, appeared pro se.

The respondents IBM and Liberty Mutual Insurance were represented by Steven G. Howe, Esq., Law Offices of Robert M. Brennan, One Century Tower, 265 Church Street, Suite 802, New Haven, CT 06510.

This Petition for Review from the December 30, 2002 Finding and Dismissal of the Commissioner acting for the Seventh District was heard July 18, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Howard H. Belkin and Ernie R. Walker.

OPINION
JOHN A. MASTROPIETRO, CHAIRMAN.

The claimant, Darrell Conerly, has appealed from the December 30, 2002 Finding and Dismissal of the Commissioner acting for the Seventh District. We affirm the decision of the trial commissioner.[1]

The pertinent facts to this appeal are as follows. On January 9, 2001 the claimant filed a Form 30C with the Seventh District Workers’ Compensation Commission office. The date of injury listed on the Form 30C was August 14, 1997. The trial commissioner took administrative notice of that Form 30C. December 30, 2002 Transcript, pp. 15, 22.

The issue before the trial commissioner at the formal hearing was the Respondents’ Motion to Dismiss. At the formal hearing the trial commissioner asked the claimant a series of questions. Among the questions posed to the claimant by the trial commissioner were; whether the claimant received any medical treatment for his alleged injury within one year from his last date of employment, whether the claimant signed a voluntary agreement relating to his claim, whether the claimant had a hearing or requested a hearing on this case within one year of his last date of employment. To all these questions posed by the trier the claimant responded in the negative. See December 30, 2002 Transcript, pp. 4-6, 9-11, and 13.

The commissioner found that the claimant’s filing of his claim occurred more than one year following the date of his alleged injury. Additionally, the claimant’s testimony before the trier indicated none of the three exceptions to the requirement of a written notice of claim set out in § 31-294c (a) were met. Thus, the trier granted the Respondents’ Motion to Dismiss. December 30, 2002 Transcript, pp. 24, 25.

On December 31, 2002, the claimant filed a Petition for Review from the commissioner’s ruling on the Motion to Dismiss. The only document filed by the claimant that may arguably be construed as providing his reasons of appeal is a document titled, “Motion To Correct.” That document was received by the Compensation Review Board on January 27, 2003. Although this “Motion to Correct” was ultimately denied by the trial commissioner, the substance of the document was addressed to the Compensation Review Board. We have previously given pro se appellants some leeway as to the form of documents filed in pursuit of their appeal. McCarthy v. ATT Communications, Inc., 3689 CRB-6-97-9 (August 7, 1998); Hines v. Linc Scientific Imaging, 3037 CRB-8-95-3 (April 14, 1997). If the document the pro se party filed adequately states their reasons for appeal, we have allowed the appeal to go forward. Id.

In this case, the claimant’s Motion To Correct which we are construing as Reasons For Appeal, present three issues for our review. As this document fairly apprises the appellees of the claimant’s issues presented for review, we will allow the appeal to go forward based on this document and his timely Petition for Review.

The ultimate issue presented for review is whether the trial commissioner’s granting of the respondents Motion To Dismiss was legally appropriate. In light of our holding on this issue, we need not reach any of the other issues presented.[2] The relevant statutes at issue are § 31-294c (a) and § 31-294c (c).[3] Sec. 31-294c (a) requires a claimant to file a written Notice of Claim within one year of the date of injury.

In the instant case the gravamen of the claim is that the claimant sustained a physical injury as a result of a mental injury. Assuming arguendo, the claimant could meet his burden of proving a physical injury as a result of his mental injury claim; he would need to prove that the Notice of Claim was filed within one year of his injury. As the particular injury for which the claimant seeks compensation is one that is characterized as a claim due to repetitive trauma, the latest date by which the claimant should have filed his written notice of claim is the last date of exposure to the injury source. In this case this date would be, at the latest, one year from his last date of employment. See; Borentv. State, 33 Conn. App. 495, 499 (1994), Tobin v. Kimberly-ClarkCorporation, 16 Conn. Workers’ Comp.Rev.Op. 39, 2045 CRB-7-94-5 (October 18, 1996).

The claimant has not worked for the respondent since August of 1997. December 30, 2002 Transcript, p. 14. Section 31 294c (c) provides three circumstances by which a claimant may be relieved of the statutory duty to file a written Notice of Claim within one year of the date of injury. The trial commissioner directly inquired of the claimant as to the possible existence of circumstances which might satisfy the exceptions provided in § 31-294c (c). To each question regarding such circumstance the claimant answered in the negative.

“This Commission must dismiss all actions in which timely notice is lacking, as subject matter jurisdiction is necessarily absent.” Scott v.Wal-Mart Stores, Inc., 4185 CRB-4-00-2 (April 10, 2001). The Workers’ Compensation Commission is an administrative agency with limited jurisdiction based on statutes, therefore, it must have jurisdiction of all matters before it. Keegan v. Aetna Life and Casualty Insurance Co., 42 Conn. App. 803, 805-806 (1996); Gary v. Department of Correction, 68 Conn. App. 590, 594 (2002). The claimant in this case did not file his Notice of Claim within the one year required by § 31-294c and did not satisfy any of the statutory exceptions. Therefore, this commission lacks subject matter jurisdiction to hear this case and we affirm the trial commissioner’s dismissal of the claim.

We thus affirm the December 30, 2002 Finding and Dismissal of the Commissioner acting for the Seventh District.

Commissioners Howard H. Belkin and Ernie R Walker concur.

[1] Procedurally, the claimant originally filed a Petition for Review from the trial commissioner’s August 27, 2002 Ruling on Respondent’s Motion to Dismiss. The ruling was issued without a formal hearing on the record. Therefore, on November 7, 2002, through order of the Chairman, the matter was remanded to the Commissioner acting for the Seventh District for a formal hearing on the record or other appropriate action. On December 30, 2003, the Commissioner acting for the Seventh District held a formal hearing in order to establish a record. The Commissioner made a Finding and Dismissal via a bench ruling on the record on that date. It is from this Finding and Dismissal that the claimant appeals.

[2] The issues the claimant raised were as follows: Firstly, the claimant requested we find compensability based on the Social Security Administration’s findings of disability and payment of benefits. Secondly, the claimant requested that no further hearings be held in the Seventh District because the claimant perceived that he did not receive a fair hearing there. Lastly, the claimant requested the Compensation Review Board hear the case and review all the documents. We note to the claimant, even if the Commission had subject matter jurisdiction on this matter, his appeal would still be unsuccessful for the following reasons. The standards that the Social Security Administration uses for determining total disability are not the same as that of the Workers’ Compensation Commission. Therefore, compensability based on the claimant’s Social Security benefits would not result in an automatic finding of compensability under the Workers’ Compensation statutes. Zizicv. Sikorsky Aircraft Division et al., 3732 CRB-4-97-11 (July 7, 1999). Additionally, we find no evidence in the record that indicates the claimant did not receive a fair hearing at the Seventh District. Lastly, the Compensation Review Board will not act as the trier of facts on a case. The trial commissioner is the fact finder. Simpson v. Mediplex ofWethersfield, 4210 CRB-6-00-3 (May 4, 2001).

[3] The relevant parts of the statute are as follows:

Sec. 31-294c (a) provides:

No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. Notice of a claim for compensation 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 from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. An employee of the state shall send a copy of the notice to the Commissioner of Administrative Services. As used in this section, “manifestation of a symptom” means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed.”

Sec. 31-294c (c) provides:

Failure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings if there has been a hearing or a written request for a hearing or an assignment for a hearing within a one-year period from the date of the accident or within a three-year period from the first manifestation of a symptom of the occupational disease, as the case may be, or if a voluntary agreement has been submitted within the applicable period, or if within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d. No defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice. Upon satisfactory showing of ignorance and prejudice, the employer shall receive allowance to the extent of the prejudice.