Opinion
CASE NO. 59-CRD-3-81
JULY 13, 1982
The claimant-appellee was represented by William F. Gallagher, Esq.
The respondents-appellants were represented by Horace F. Trotta Esq.
This Petition for Review from the March 17, 1981 Decision of the Commissioner for the Third District was argued December 1, 1981 before a Compensation Review Division panel consisting of Commissioners John Arcudi, Gerald Kolinsky and A. Paul Berte.
FINDING AND AWARD
1. Claimant Harold J. Graf, Jr. was on December 8, 1972 and for some time prior thereto an employee of the employer-respondent Genovese Massaro, Inc.
2. The employer had insured its full liability under the Connecticut Workers' Compensation Law with the insurer-respondent, Fidelity Casualty Company, c/o Underwriters Adjusting Company.
3. Claimant suffered an injury arising out of and in the course of that employment while doing some electrical work at Upjohn Corporation in North Haven.
4. The injury occurred when claimant was overcome by phosgene gas at that site.
5. Apparently Upjohn and its insurer, Aetna Life Casualty, acknowledged some liability to claimant and issued checks to him as "payment for lost wages," "payment for bodily injury."
6. Eventually, claimant made a third party claim against Upjohn which resulted in a $10,000 jury verdict in December, 1978.
7. But very soon after the December 8, 1972 injury there was contact between the claimant and the insurer-respondent.
8. That contact resulted in a letter from the respondent to claimant requesting information under the "Workmen's Compensation Law Effective October 1, 1967."
9. At the foot of the letter claimant filled out a form showing:
1. He had one dependent child;
2. He worked for no other employer during the previous six months except Genovese Massaro; and
3. He was earning $8.40 per hour.
10. The form containing the information listed in paragraph 9 above was signed by claimant, Harold J. Graf, Jr.
11. After this December 20, 1972 document, there is a letter between the respondent and claimant's attorney concerning the mistaken assumption by Upjohn and Aetna that claimant's compensation claim was against them and inquiring whether claimant was making a compensation claim against the respondent, Genovese Massaro, February 15, 1973.
12. There is then a series of other letters between respondent and claimant's counsel concerning the claim between June 19, 1973 and September 17, 1973.
13. On October 5, 1973 partially as a result of this exchange of correspondence, claimant was seen by Dr. Allen Chetrick on the respondent's behalf at the respondent's expense.
14. On December 11, 1972 the bookkeeper for Genovese Massaro had sent a first report of injury to the insurer-respondent.
15. It is found that the respondents received written notice of the claim for injury by virtue of claimant's filling out the December 20, 1972 document and signing the information thus furnished.
16. It is found further that Sec. 31-294 notice within a year of the injury was also given to the respondents by virtue of the various letters written by claimant's attorney to respondents between June 19, and September 17, 1973.
17. Finally, the examination of claimant by Dr. Allen Chetrick October 5, 1973 at respondent's expense and the written report of such examination dated October 9, 1973 constituted the furnishing of medical attention within the year of injury and therefore further satisfies the requirements of Sec. 31-294.
WHEREFORE IT IS ORDERED, DECREED, AWARDED AND ADJUDGED That:
A. Claimant gave written notice of his injury to respondent's within one year in compliance with Sec. 31-294.
B. Claimant is therefore entitled to all the benefits of the Workers' Compensation Law for the December 8, 1972 injury.
C. The decision of the Third District Commissioner is affirmed.
D. Matter is remanded to the Third District Commissioner to hold a further hearing to determine what if any amount of attorneys' fees and interest is due on benefits which will be ordered to be paid for the unreasonable contest and the undue delay in payment.
OPINION
The issues in this matter are not complex. Claimant was an employee of the employer-respondent December 8, 1972. The employer sent him to do a job at the Upjohn premises in North Haven. While there in the course of his employment by Genovese Massaro, Inc., he was overcome by phosgene gas, thus suffering an injury arising out of the employment.
There was some initial confusion as to who the responsible employer was. Upjohn and its insurer assumed themselves to be responsible and actually sent claimant some checks by way of compensation. But Genovese Massaro by December 20, 1972 within twelve days of the injury were aware that the Workers' Compensation claim lay against them, and they requested the claimant to furnish information to perfect his claim. He did so, furnishing three pieces of information and signed the form, clearly giving written notice to the respondents of his Workers' Compensation claim.
Subsequently his lawyer corresponded with the respondents about the claim, and claimant was seen by a doctor whom the respondents furnished and paid. That doctor on October 9, 1973 wrote a report of his October 5 examination. We thus have three separate modalities by which the claimant satisfied Sec. 31-294, two of them actual written notice, and a third constructive notice method by the employer's furnishing medical attention.
It is difficult to conceive how under these circumstances anyone can advance the Sec. 31-294 defense that no written notice of claim has been made within a year of injury. Walsh v. Waldron, 112 Conn. 579, (1931), Rehtarchik v. Hoyt Messinger Corporation, 118 Conn. 315, (1934), Kulis v. Moll, 172 Conn. 104, (1976) have no relevance whatsoever to this situation.
Such a 31-294 defense approaches dangerously close to the realm of the sham and frivolous. For these reasons we have issued our own Finding and Award dismissing the appeal and affirming the decision of the Third District Commissioner. We have also ordered a further hearing to determine what if any interest and attorneys' fees should be assessed for the undue delay in payment.