Opinion
CASE NO. 2016 CRB-4-94-4
APRIL 28, 1995
The claimant was represented by Ian Cole, Esq., Cohen, Micci Thomas.
The respondents were represented by Stephen Ekern, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the April 4, 1994 Ruling on Motion to Preclude of the Commissioner acting for the Fourth District was heard October 28, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.
OPINION
The claimant has petitioned for review from the Fourth District Commissioner's April 4, 1994 denial of his Motion to Preclude. In support of his appeal, the claimant contends that it was an error of law for the trial commissioner to deny the Motion to Preclude because the claimant's Notice of Claim was timely and there was no fraud on the part of the claimant. We find no error.
The trial commissioner found the following relevant facts. On November 17, 1992, the claimant signed a Certificate of Acknowledgment of Physical Defect in which he stated that while he was bowling on August 9, 1992 he suffered from a "(h)erniated extruded L4-L5 (L) side." This document was approved by a commissioner and filed at the Fourth District office. Subsequently, on July 23, 1993, the claimant filed a Notice of Claim in which he alleged that he suffered a "(h)erniated disc at L4-5, (L) side" on August 14, 1992 during his employ with the respondent employer. The employer filed a disclaimer of liability on August 25, 1993, thirty-three days after the notice of claim was filed.
Pursuant to § 31-297(b) C.G.S. (now § 31-294c(b)), an employer is required to file a Notice to Contest Liability, also known as a Form 43, with the Workers' Compensation Commission within twenty-eight days after receiving a written notice of claim. Failure to do so results in the employer being "conclusively presumed to have accepted the compensability of the alleged injury or death and [the loss of any] right thereafter to contest the employee's right to receive compensation on any grounds or the extent of his disability." The parties agree that the employer did not meet the twenty-eight day deadline in this case.
Public Act 93-228, Sec. 8(b) has significantly changed the language of this provision so that an employer who fails to file a timely notice of intent to contest compensability may commence payment and still contest the employee's right to receive compensation or the extent of his disability within one year from the receipt of written notice of claim. This provision was not in effect at the time of the claimant's injury, however, and is not applicable to this case. See Iacomacci v. Trumbull, 209 Conn. 219 (1988); Dealmeida v. M.C.M. Stamping Corporation, 10 Conn. Workers' Comp. Rev. Op. 21, 23-24, 1097 CRD-7-90-8, 1139 CRD-7-90-11 (1991) (changes to preclusion statute cannot be given retroactive effect).
Section 31-297(b) C.G.S. "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." Pereira v. State, 228 Conn. 535, 542-43 n. 8 (1994). In light of Pereira, the question regarding the instant Motion to Preclude is whether the claimant's notice of July 23, 1993 provided the employer with sufficient notice to investigate the claimant's reported injury.
We agree with the trial commissioner that it did not provide sufficient notice. Specifically, the commissioner took administrative notice of the claimant's approved Certificate of Acknowledgment of Physical Defect which was filed with the Fourth District. In that document, the claimant stated that his back injury, involving vertebrae L4 and L5, occurred while bowling on August 9, 1992. The claimant's subsequent Notice of Claim alleges that the same vertebrae were injured while at work on August 14, 1992. The trial commissioner determined that the claimant's previous filing of the conflicting document rendered the claimant's notice insufficient for purposes of preclusion pursuant to § 31-297(b) C.G.S. We find the trial commissioner's determination to be reasonable, as the inconsistent and contradictory statement in the claimant's Acknowledgment of Physical Defect could reasonably be expected to cause confusion and uncertainty on the part of the employer, which would impede its timely investigation of the claimant's claim. Thus, the trial commissioner properly concluded that the claimant's notice was insufficient to support the granting of a Motion to Preclude.
Accordingly, we affirm the commissioner's denial of the Motion to Preclude, and dismiss the claimant's appeal.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.