Opinion
CASE NO. 442 CRD-1-86
MAY 11, 1987
The claimants were represented by Henry V. Hurvitz, Esq., Hurvitz, Hershinson Schoenhorn.
The respondents were represented by Bernard Poliner, Esq., Poiner Rosen.
The Second Injury Fund was represented on appeal by Robert Festa, Esq., and at trial level by Robert Girard, Esq., Assistant Attorneys General.
This Petition for Review from the December 24, 1985 Finding and Dismissal of the First District Commissioner was heard April 24, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Michael Sherman.
OPINION
Claimants' decedent died as a result of a fall from a ladder while painting the windows of the respondents' apartment building. The decedent died September 30, 1983. The claimants sent a written notice of claim by certified mail to the respondents which was received October 13, 1983. The Commissioner of the First District found that the respondents did not contest liability within the twenty (20) days prescribed by Sec. 31 297(b) C.G.S However, after the twenty (20) days passed the respondents filed a Form 43-67, Notice to Compensation Commissioner And Employee of Intention to Contest Liability To Pay Compensation which alleged, inter alia, there was "no jurisdiction under Conn. Workers' Compensation Act as there is no employer-employee relationship." The claimants filed a Motion to Preclude a Contest of Liability under Sec. 31-297(b). The trial Commissioner denied claimants' motion and entered a Finding and Dismissal of Claim on December 24, 1984 from which the claimants have appealed.
The ultimate issue to be decided on appeal is whether the trial Commissioner erred in denying claimants' Motion to Preclude under Sec. 31-297(b). We find the trial Commissioner did err in denying the Motion to Preclude. Our finding of error is based on LaVogue v. Cincinnati, Inc., 9 Conn. App. 91 (1986), cert. denied, 201 Conn. 814 (1987).
LaVogue held, "If an employer fails to file a notice contesting liability, the employer shall be conclusively presumed to have accepted the compensability of the employee's injury. . . ." Id. at 93. LaVogue holds that where a conclusive presumption of liability arises, liability cannot be attacked on any grounds, including jurisdiction.
We, therefore, remand this matter to the trial Commissioner.
Commissioners Robin Waller and Michael Sherman concur.