O'DONNELL v. STATE JUDICIAL DEPARTMENT, 1821 CRB-4-93-8 (6-5-95)

AGATHA O’DONNELL, CLAIMANT-APPELLANT v. STATE OF CONNECTICUT/JUDICIAL DEPARTMENT, EMPLOYER, SELF-INSURED, RESPONDENT-APPELLEE

CASE NO. 1821 CRB-4-93-8Workers’ Compensation Commission
JUNE 5, 1995

The claimant was represented by Richard L. Gross, Esq., Cantor, Floman, Russell, Gross.

The respondent was represented by Edward F. Osswalt, Esq., Assistant Attorney General.

This Petition for Review from the August 9, 1993 Order Re: Motion To Preclude of the Commissioner acting for the Fourth District was heard September 30, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl, and Commissioners Angelo L. dos Santos and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN.

The claimant has petitioned for review from the Commissioner’s August 9, 1993 Order Re: Motion To Preclude. In that order, the trial commissioner denied the claimant’s motion to preclude on the basis that the notice of claim did not support a motion to preclude as the notice was technically insufficient.

Claimant’s Form 30-C notice of claim identified her employer as “State of Connecticut” and gave as its address, “784 Fairfield Ave., Bridgeport, Conn.” Claimant’s claim also indicated that the nature of her injury was “multiple chemical sensitivities” and the date of diagnosis was January 3, 1992. The respondent contested the claimant’s motion to preclude on the basis that the notice of claim failed to specifically identify claimant’s employer and thus, could not support the preclusion of the respondent’s defenses to the claim.[1] The respondent also argued that the claim was untimely under the time limitations set out in § 31-294 C.G.S.

The trial commissioner found that while the respondent’s Form 43 disclaimer of liability was filed more than 28 days after receipt of the claimant’s notice of claim, under this tribunal’s ruling in Pereira v. State of Connecticut,9 Conn. Workers’ Comp. Rev. Op. 9
(Jan. 8, 1991), the notice was insufficient. However, subsequent to the proceedings in this matter, the Supreme Court considered Pereira, supra and in a footnote advised the Compensation Review Board when considering the sufficiency of notice necessary to trigger an employer’s response under § 31-297(b) the statute is to be construed in light of its broad humanitarian purpose.Pereira v. State, 228 Conn. 535, 542-43, note 8 (1994).

In Pereira, the CRB affirmed the trial commissioner’s denial of a motion to preclude where the claimant’s notice of claim identified the employer as “Dept. of Children Youth Services” as opposed to “State of Connecticut, Department of Youth Services”. The Supreme Court in Pereira noted:

The rule of strict compliance adopted by the review division is not supported by either the plain language or the legislative history of § 31-297(b). To the contrary, § 31-297(b) is remedial legislation that should be liberally construed to accomplish its humanitarian purpose. Dubois v. General Dynamics Corp., 222 Conn. 62, 67 (1992). Specifically, as noted above, it was enacted to require a prompt and thorough investigation of the employee’s claim so as to yield a specific disclaimer of liability and to avoid unnecessary delay in the adjudication of workers’ claims. As a result, if the notice of claim is sufficient to allow the employer to make a timely investigation of the claim, it triggers the employer’s obligation to file a disclaimer. Id.

Pereira, supra at 543, note 8.

Thus, applying the guidance set out in Pereira, we can only conclude that the trier’s conclusion that the notice of claim was insufficient to trigger the preclusion of the respondent’s defenses due to its failure to properly identify the employer, was an incorrect application of the law.[2] However, we also note that the respondent additionally contested the claimant’s claim on the basis that the claim was untimely under §31-294. The commissioner made no decision as to the timeliness of claimant’s claim. Our Supreme Court has held that compliance with the time requirements set out in § 31-294 is jurisdictional, and thus, a determination as to the timeliness of the claim must be made before the claimant can be permitted to prevail in her motion to preclude. See Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276
(1988) cert. denied 207 Conn. 805 (1988).

We, therefore remand the instant matter to the Fourth District for further proceedings so as to permit a determination of the timeliness of the claimant’s claim.

Commissioners Angelo L. dos Santos and Michael S. Miles concur.

[1] Claimant’s notice of claim was received in the Fourth District on or about February 7, 1995 and in the Dept. of Administrative Services, February 13, 1995. As noted above claimant claims January 3, 1992 as her date of diagnosis. At the time of claimant’s date of diagnosis Public Act 91-339 § 47 repealed Public Act 91-32 § 11 which repealed § 31-297(b) and recodified that provision in substantially the same form as § 31-294c(b). The effective date of Public Act 91-32 § 11 was July 1, 1991 Public Act 91-339 § 47 took effect January 1, 1992. Thus, § 31-294c(b) after the effective date of Public Act 91-339 § 47 provided: Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the workers’ compensation commission 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. The employer shall send a copy of the notice to the employee in accordance with section 31-321 of the general statutes. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed in this subsection, the employer shall be conclusively presumed to have accepted the compensability of the 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] We should note that the trier’s decision in the instant matter was issued August 9, 1993. The Supreme Court’s opinion inPereira v. State, 228 Conn. 535 (1994) was not issued until February 15, 1994.