Opinion
CASE NOS. 1097 CRD-7-90-8, 1139 CRD-7-90-11
DECEMBER 30, 1991
The claimant was represented by William R. Jones, Esq., Jones, Damia, Kaufman, Wellman, Borofsky Stelljes.
The respondents were represented by David A. Kelly, Esq., Montstream May.
This Petition for Review from the August 14, 1990 Finding and Award and November 13, 1990 Denial of a Motion to Vacate of the Commissioner for the Seventh District were heard June 28, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Andrew Denuzze and Angelo dos Santos.
OPINION
Respondent Appellants attack both the August 14, 1990 decision granting the Motion to Preclude Defenses with the consequent presumption of liability and the November 13, 1990 denial of the Respondents' Motion to Vacate the Award. Their basic argument is that claimant's claim notice failed to include a warning about the preclusive effect of Sec. 31-297b. Sec. 31-297b had been amended by the 1990 General Assembly so that the preclusion of defenses and the accompanying irrebuttable presumption of liability provided for in that statute would only result if such a warning had been included in the notice, Public Act 90-116, Sec. 9.
Public Act 90-116 Sec. 9 provides in pertinent part:
(b) Except as provided in subsection (c) of this section, whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioners, 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, PROVIDED THE EMPLOYER SHALL NOT BE CONCLUSIVELY PRESUME TO HAVE ACCEPTED COMPENSABILITY WHEN THE WRITTEN NOTICE OF CLAIM HAS NOT BEEN PROPERLY SERVED IN ACCORDANCE WITH SECTION 31-321 OR WHEN THE WRITTEN NOTICE OF CLAIM FAILS TO INCLUDE A WARNING THAT THE EMPLOYER SHALL BE PRECLUDED FROM CONTESTING LIABILITY UNLESS A NOTICE CONTESTING LIABILITY IS FILED WITH THE TIME PERIOD SET FORTH IN THIS SECTION.
Claimant had been employed by the respondent employer at its' Danbury plant from February 10, 1986 until February 10, 1988. On September 9, 1988 the employer received a certified mail notice of claim alleging that in the course of his employment by the respondent from February 10, 1986 until January 26, 1988 claimant sustained injuries, low back strain syndrome, degenerative L5-S1 disc disease. As the respondents failed to file a notice of contest, served in the manner required by Sec. 31-321, within the time permitted by Sec. 31-297b, the Seventh District Commissioner granted claimant's motion to precluded defenses.
The effective date of Public Act 90-116 was October 1, 1990. However, respondents contend the act should be applied retroactively. They argue the act is procedural and therefore should be applied retrospectively. We disagree. Sec. 9, P.A. 90-116 does establish a procedure to be followed in order that a preclusion of defenses may arise. But it affects substantive rights and must therefore be considered substantive. The basic right affected by it is claimant's entitlement to an irrebuttable presumption of compensability against the employer. It is difficult to imagine any concept more substantive than an irrebuttable presumption of liability.
Sec. 55-3 C.G.S. provides:
"No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect." Section 55-3 has been construed to establish a rule of presumed legislative intent and not a rule of law. Schieffelin Co. v. Dept. of Liquor Control, 194 Conn. 165 (1984). As P.A. 90-116, Sec. 9 imposes a new obligation on the claimant before the presumption of liability may be asserted, then it must be treated as having a prospective application.
This interpretation is supported by case precedent. Hunter v. Hunter, 177 Conn. 327, 331 (1979) noted:
Generally a statute effecting substantial changes in the law or amendatory act which causes changes in existing statutes is not to be given a retroactive effect unless it clearly and unequivocally appears that such was the legislative intent, and even if the amending statute is a procedural statute which ordinarily will be applied retroactively without legislative imperative to the contrary, it will not be so applied if considerations of good sense and justice dictate that it will not be so construed. American Masons' Supply Co. v. F.W. Brown Co., 174 Conn. 219, 222-25 (1978) (other citations omitted).
Respondents have not provided any documentation or reference to legislative history which would tend to support an inference that the amending act was intended to operate retrospectively. "Considerations of good sense and justice dictate" that the 1990 act have a prospective application as it is indeed an amending statute effecting a substantial change in the law.
Respondents' second argument is that there were no evidential hearings to establish causation of the injury before the Seventh District granted the preclusion of defenses and irrebuttable presumption of liability in its August 14, 1990 ruling. Therefore they contend jurisdiction to hear the case had not been established. Subject matter jurisdiction, they argue, is a liminal requirement without which the commissioner could not act. This issue was considered by the CRD in Marchesseault v. Guerrera, 7 Conn. Workers' Comp. Rev. Op. 104, 850 CRD-5-89-4 (1989) which held that issues of causation were not jurisdictional.
"Once the existence of the underlying employment relationship is established the workers' compensation commissioner has jurisdiction over the res. Compensability contentions may then proceed to be aired within the boundaries of that subject matter. Instead if causation defenses are held to raise jurisdictional issues Sec. 31-297(b) would become a superfluous law. A claimant would have to prove his whole case before he could rely on the statutory irrebuttable presumption. That certainly was not the intent of the 1967 legislature when it enacted the section".
Id at 106. Our holding in Marchesseault is dispositive of this issue. Issues of causation are not jurisdictional and cannot be raised if the respondent is precluded from asserting defenses to a claim pursuant to Sec. 31-297(b).
We therefore affirm both the August 14, 1990 Finding and Award of the Commissioner for the Seventh District and his denial of the Respondents' Motion to Vacate. Pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of these appeals. Respondents' appeals are dismissed.
Commissioners Andrew Denuzze and Angelo dos Santos concur.