CASE NO. 701 CRD-3-88-3Workers’ Compensation Commission
AUGUST 11, 1989
The claimant was represented by Gerald Stevens, Esq., Stevens, Moran, Carroll Carveth.
The respondents were represented by Edward Gallant, Esq. and Betty Levy, Esq., both of Gallant Gallant.
This Petition for Review from the February 24, 1988 Decision on Motion to Preclude of the Commissioner at Large acting For the Third District was heard April 28, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Frank Verrilli.
OPINION
JOHN ARCUDI, CHAIRMAN.
Central to the determination of this appeal is the degree of specificity required in a respondent’s disclaimer under Sec. 31-297(b) as interpreted by Menzies v. Fisher, 165 Conn. 338 (1973), Wilcox v. Naugatuck 16 Conn. App. 676 (1988). (per curiam), Tovish v. Gerber Electronics, 19 Conn. App. 273 (1989). The commissioner at large ruled February 24, 1988 that a Motion to Preclude would lie since respondents’ disclaimer was not sufficiently specific.[1]
On or about May 29, 1986 claimant forwarded a Form 30-C Notice of Claim to his employer. In that part of the Form 30-C requiring claimant to describe the nature of the injury was written; “** see schedule “A” attached hereto.” On the accompanying schedule A the injury was described as:
“1) Repetitive trauma claim for period of employment from 1973 to present time, causing aggravation of pre-existing heart disease, anxiety and depression. 2) Occupational disease claim for period of employment from 1973 to present time in that physical, mental, emotional and nervous disorders and stresses attributable to work and traceable to employment caused or contributed to aggravation of pre-existing heart disease, anxiety and depression. 3) Work related hernia and treatment therefore aggravated pre-existing heart disease and disabled claimant. First knowledge of condition, October, 1985.”
(claimant’s exhibit A — Formal Hearing September 15, 1986.)
The Respondent in its Form 43 Disclaimer of Liability stated: “1. Respondents deny all allegations filed on Schedule A accompanying Form 30C and dated 5/29/86.” (Claimant’s Exhibit B — Formal Hearing Sept. 15, 1986.)
The trial commissioner characterized the Form 43 as “a general denial”, “a vague response on the Respondents part” and therefore not in compliance with Menzies v. Fisher, supra. In Wilcox, supra, decided October 11, 1988 by a per curiam opinion the Appellate Court ruled inadequate a disclaimer stating “Employee did not sustain accidental injury as defined by the Workers’ Compensation Act. We deny the injury, any disability and the causal relation.” In Tovish, supra, decided August 1, 1989, a different Appellate Court panel held sufficiently specific a disclaimer stating “[I]njury (heart attack) did not arise out of or in the course and scope of employment:” id, 274. The Menzies, supra, disclaimer stated: “[W]e deny a compensable accident or injury:” id, 341.
Given the specific nature of claimant’s notice of claim here wherein he affirmatively alleges more than a dozen different concepts cognizable under the Workers Compensation Act, we do not consider respondents’ “denial of all allegations” imparts any meaningful information whatsoever. Does it really deny each specific allegation, e.g. the heart disease, the aggravation, the repetitive trauma, the employment, itself, or is it merely denying causality? In essence what it actually constitutes is the general denial found to be insufficient in Menzies. Thus
“[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, . . . As far as notifying the claimant of the specific grounds on which her claim was contested, the stated disclaimer apprised her of nothing except the fact that liability was contested. From this claimant’s vantage point, if the defendants proceed on the stated defense, she, the claimant, must be prepared to meet any number of undisclosed objections to recovery — including her eligibility to receive compensation benefits. Neither the statute nor the Workmen’s Compensation Act contemplates such an impediment to bona fide claims.”
Menzies v. Fisher, supra, 344.
The Tovish court distinguished Menzies by interpreting the respondents’ disclaimer to embody a specific element of the five distinct elements needed to establish a prima facie claim, i.e. a denial that the heart attack was “a personal injury as defined by the act, arising out of and in the course of employment.” Tovish v. Gerber Electronics, supra, 275. But whatever the specificity found in Tovish, we can see no such specificity for distinguishing Menzies in the instant matter. Here the disclaimer denies all five elements and whatever other allegations are encompassed in the notice of claim. Menzies mandates that we find such a disclaimer insufficient. Therefore the Motion to Preclude lies.
The trial commissioner’s ruling establishing an irrebuttable presumption of compensability under Sec. 31-297(b) is affirmed and the appeal is dismissed.
Commissioners Gerald Kolinsky and Frank Verrilli concur.