HUSHIN v. HAWTHORNE INN, INC., 931 CRD-6-89-10 (3-5-91)

DONNA HUSHIN, CLAIMANT-APPELLANT v. HAWTHORNE INN, INC., EMPLOYER, and AMERICAN MANUFACTURES MUTUAL INSURANCE COMPANY, INSURER, RESPONDENTS-APPELLEES

CASE NO. 931 CRD-6-89-10Workers’ Compensation Commission
MARCH 5, 1991

The claimant was represented by Marshall J. Mott, Esq., and William R. Scaringe, Esq., Law Offices of Marshall J. Mott.

The respondents were represented by Edward S. Downes, Jr., Esq.

This Petition for Review from the October 20, 1989 Ruling on Motion or Preclude of the Commissioner for the Sixth District was heard September 28, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and George Waldron.

OPINION

JOHN ARCUDI, CHAIRMAN.

Claimant appeals the Sixth District’s denial of her Motion to Preclude. The employer on October 1, 1988 received a written notice of claim sent certified mail for an injury alleged to have occurred October 12, 1987. The written notice of claim included the name of the claimant, her address and in one part of the form designated the claimant’s attorney as William R. Scaring. No return address for the claimant’s attorney was contained on the form. The respondent then forwarded a Form 43 Notice of Contest to the Sixth District and to the claimant “c/o William Scaringe, Esq., 364 Franklin Ave., Hartford, CT 06114.” The District received its copy October 11, 1988. The Form 43 copy addressed to Attorney Scaringe at 364 Franklin Ave., Hartford, CT was returned undelivered to the respondent-insurer. (See Respondent’s Exhibit C1.)

Finding that (1)the disclaimer of liability as required by Sec. 31-297(b) was filed with the commissioner’s office and (2)respondents acted “in good faith and in accordance with custom and practice” in their attempt to forward a copy of the Disclaimer to the claimant through her attorney, the commissioner below denied preclusion. On review claimant contends the commissioner erred as Sec. 31-297(b) requirements were not met and the evidence presented was insufficient to support his finding.

While it was not offered below, the respondents in the instant matter appended a copy of the SNET Hartford yellow pages telephone directory for 1988-89 to their trial brief. In that document an address and telephone number for Attorney William R. Scaringe is listed. The address listed is 364 Franklin Ave. We think that fact if admitted in evidence and coupled with the testimony elicited in the June 13, 1989 Formal Hearing might constitute a legally sufficient basis for the conclusion that respondents made a good faith attempt to notify claimant through her attorney.

Sec. 31-297(b)[1] C.G.S. then required that a notice contesting liability be filed with the Workers’ Compensation Commissioner on or before twenty days after receiving a written notice of claim, and copy of the notice sent to the employee. We have held Sec. 31-297(b) notices be sent in compliance with Sec. 31-321.[2] See e.g., Skorupski v. Commercial Union Insurance Co., 2 Conn. Workers’ Comp. Rev. Op. 133, 338-CRD-3-84 (1985);

Sec. 31-321 provides that “[s]ervice . . . [be] by registered or certified mail at . . . last known residence or place of business.” The trial commissioner could have found that respondents’ use of the then current Hartford telephone directory to discover the attorney’s address and the certified mailing of the copy to that address complied with the statutory requirements of Sec. 31-321 (C.G.S.)

But the evidence demonstrating the method by which the address was ascertained was not before the commissioner. If the commissioner needed such evidence to reach his conclusion, then the evidence needed to be the record.

We therefore remand the instant matter to the trial commissioner for further proceedings.

Commissioners Frank Verrilli and George Waldron concur.

[1] Sec. 31-297(b) provides: (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. 31-321 provides: Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by be by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business. Notices in behalf of a minor shall be given by or to his parent or guardian or, if there is no parent or guardian, then by or to such minor.