Opinion
CASE NO. 897 CRD-5-89-7
JANUARY 4, 1991
The claimant was represented by Edward T. Dodd, Esq.
The respondent was represented by Amado Vargas, Esq., Brewster Blackall, Esq., and Michael Belzer, Esq., Assistant Attorneys General.
This Petition for Review from the July 12, 1989 Memorandum Ruling on a Motion to Preclude of the Commissioner At Large acting for the Fifth District was heard June 1, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and George Waldron.
OPINION
The State has appealed the decision below granting an irrebuttable presumption of compensability on claimant's Motion to Preclude. The trier held respondent's disclaimer of liability was not sufficiently specific as required by statute, Sec. 31-297(b) and under case law, Menzies v. Fisher, 165 Conn. 338 (1973); Wilcox v. Naugatuck, 16 Conn. App. 676 (1988) (per curiam).
However, subsequently, the Appellate Court decision in Tovish v. Gerber Electronics, 19 Conn. App. 273 (1989) distinguished Menzies and Wilcox. We think Tovish requires us to view the decision below with a different perspective. We discussed Tovish, and Wilcox in Marchesseault v. Guerrera, 7 Conn. Workers' Comp. Rev. Op. 104, 850 CRD-5-89-4 (1989).
In the present case the disclaimer of liability stated "Respondent contends claimant's repetitive stress, both mental and emotional, are not casually related to her employment." The Wilcox rationale would have supported the conclusion reached by the trial commissioner that such a disclaimer was not sufficiently specific.
However the later Tovish decision reversed this tribunal and held that a disclaimer stating "[I]njury [heart attack] did not arise out of or in the course and scope of employment," was sufficiently specific. In the instant case, the disclaimer language is closed to Tovish, than to Wilcox. We therefore hold that Tovish requires us to reverse the commissioner below and deny the Motion to Preclude Defenses.
Also claimant raises an additional concern. He alleges that respondent failed to comply with Sec. 31-321 since it sent the disclaimer to claimant's counsel and not to claimant. If that point is decided favorably to claimant, the commissioner below may still grant the Motion to Preclude. Because of decision based on the lack of the disclaimer specificity that contention was not addressed. Now it will need to be.
We reverse and remand for further proceedings. See v. St. Mary's Hospital, 7 Conn. Workers' Comp. Rev. Op. 65, 705 CRD-5-88-3 (1989).
Commissioners Andrew Denuzze and George Waldron concur.